Nyakaana v. National Environment Management Authority & 6 Ors.

The National Environment Management Authority (“NEMA”) demolished the petitioner’s house after serving notice that his residential property was in a wetland. He filed a Constitutional Petition in the Constitutional Court maintaining that his rights over his property and his right to a hearing and to an appeal had been violated. He claimed that Sections 67, 68 and 70 of the National Environment Act contravened Articles 21, 24, 26, 28, 42, 44, 237, and 259 of the Constitution of the Republic of Uganda and International Human Rights provisions entrenched in Articles 20 and 45 of the Constitution.

Section 67 of the National Environment Act prevented the use of land in a manner that harms the environment. Section 68 outlined the process for serving an Environmental Restoration Order, and Section 70 dealt with the consequences of ignoring or violating a restoration order. The main issues engaged Article 26 (right to property) and Article 28 (right to a fair hearing).

The Constitutional Court found in favour of NEMA, and the petitioner appealed.

The Court held that demolishing the petitioner’s property and restricting his use of land under sections 67, 68 and 70 of the National Environmental Act was consistent with Articles 21, 22, 24, 26, 27, 28, 42, 44, 237 and 259 of the Constitution.

The Court reasoned that the Constitution entrenches the right to a healthy environment. Under Article 39, and Article 237 (2)(b), the government was required to hold wetlands and other national resources in trust for the good of all. Article 245 of the Constitution was intended to preserve and protect the environment and could be used to ensure that a property owner did not harm other citizens by causing pollution or degrading the environment simply because he or she owned the land. Accordingly, the Court held that the petitioner’s rights were subject to the public interest.

The Court also held that the his right to an oral hearing and right to appeal NEMA’s decision were respected. He had sufficient notice and opportunity to make representations to NEMA.

The dissent maintained that Article 68(7) of the National Environment Act violated the petitioner’s right to a hearing under Articles 26, 27 and 28 of the Constitution because NEMA had made its decision first and only then allowed input. The powers to investigate, prosecute, and adjudicate in one body led to the violation of the fundamental right to a fair hearing. The dissent also believed that Sections 67, 68 and 70 also violated Articles 21 and 28 because they created an opportunity for abuse given insufficient oversight of NEMA.

“Counsel treated the right of the appellant to own property as an absolute right that could not be fettered in any way. But Article 43 of the Constitution requires that in the enjoyment of their rights and freedoms, persons do not prejudice the rights and freedoms of others. Laws like the Land Act or the National Environment Act are specifically provided for in the Constitution to help ensure that when people exercise their rights over their property, they do not prejudice the rights of others or the public interest. This is what could conceivably happen if one obstructed a stream or wetland. Other persons would be affected either by suffering floods or drying up water sources. This must be addressed under the National Environment Act.” Page 28.

“The impugned provisions while providing for measures to protect the environment, do contain provisions whereby the appellant could have exercised his right to be heard by challenging the environmental restoration order within the stipulated period. Had he done so, he had a right to be  heard in person. He could have challenged the order in a court of law. He chose not only to ignore the environmental restoration order, but continued in carrying out the very activities he had been advised to discontinue. In those circumstances, I find it unacceptable that he should now be heard to say that he was denied a fair hearing. He just refused to take the opportunity accorded to him by the law.” Page 55.