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Africa Institute for Energy Governance (Afiego) v Attorney General (Constitutional Petition 15 of 2020)

Constitutional Court · [2024] UGCC 15 · 2024 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition challenging the constitutionality of provisions of the National Environment Act 2019
Decision
Petition dismissed; the impugned provisions of the National Environment Act 2019 held not inconsistent with the Constitution.

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Holding

The Constitutional Court dismissed the petition. Reading the National Environment Act 2019 as a whole, the court held that the "pollution control licences" issued by NEMA's technical committee under sections 81(3)(b), 82(1) and 83(1)(d) regulate and control pollution rather than authorise it, so they do not contravene the right to a clean and healthy environment under Article 39 or Parliament's duty under Article 245. The discretion in section 83(2)(a) over whether to require an environmental and social impact assessment does not offend the Constitution because mandatory ESIA is provided for elsewhere in the Act (notably section 113 and Schedule 5). The petitioner had misinterpreted provisions read in isolation and led no evidence of inconsistency.

Facts

The petitioner, a company limited by guarantee focused on energy governance and environmental preservation, challenged provisions of the National Environment Act 2019. It contended that sections 81(3)(b), 82(1) and 83(1)(d), which empower a NEMA technical committee to issue "pollution licences," authorise entities to pollute land, water or air in excess of prescribed standards, and that section 83(2)(a), by making an environmental and social impact assessment discretionary, permits licensing without assessing likely environmental dangers. The petitioner argued these provisions deprive persons of the right to a clean and healthy environment guaranteed by Article 39 and breach Parliament's duty under Article 245. The respondent answered that the provisions establish pollution-control licences that ensure a clean and healthy environment by effectively controlling pollution, consistent with the precautionary and polluter-pays principles and Uganda's international commitments, and that mandatory ESIA requirements exist elsewhere in the Act.

Issues

  1. Whether sections 81(3)(b), 82(1) and 83(1)(d) of the National Environment Act are inconsistent with or in contravention of Articles 39 and 245 of the Constitution.
  2. Whether section 83(2)(a) of the National Environment Act is inconsistent with or in contravention of Articles 39 and 245(a) of the Constitution.
  3. Whether the petitioner is entitled to the remedies claimed.

Orders

  • The petition is dismissed.
  • No order as to costs.

Key headnotes

Statutory Interpretation — Whole Text Canon — reading a provision in the context of the entire statute
A statutory provision cannot be interpreted in isolation; it must be construed within the context of the whole statute, comparing it with other sections so that provisions sustain rather than contradict one another.
Statutory Interpretation — Supremacy of Text and Purposive Construction — two constructions
Where statutory language is susceptible of two constructions, the construction that furthers and carries out the statute's manifest object is to be preferred over one that frustrates or defeats its purpose.
Constitutional Law — Right to a Clean and Healthy Environment — harmonious reading of Articles 39 and 245
Article 39, guaranteeing the right to a clean and healthy environment, and Article 245, enjoining Parliament to legislate to protect and preserve the environment, must be read together as an integral whole, each provision sustaining the other.
Environmental Law — Pollution Control Licences — character of a licence to control pollution
A statutory "pollution control licence" issued to regulate and limit pollution within prescribed standards does not authorise the holder to pollute the environment, and provisions establishing such licences do not contravene the constitutional right to a clean and healthy environment.
Environmental Law — Environmental and Social Impact Assessment — discretionary power and mandatory categories
A discretionary power to require an environmental and social impact assessment before granting a pollution control licence is not unconstitutional where the statute, read as a whole, makes such assessment mandatory for prescribed categories of projects and otherwise requires project briefs and categorisation of impacts.
Constitutional Law — Constitutional Petitions — burden of proving inconsistency
A petitioner alleging that a statutory provision is inconsistent with the Constitution bears the burden of adducing evidence to establish the inconsistency; a petition founded on a misinterpretation of provisions read out of context will fail.

Legislation cited (19)

  • Constitution of Uganda 1995 Article 39
  • Constitution of Uganda 1995 Article 245
  • Constitution of Uganda 1995 Article 137(3)
  • Constitution of Uganda 1995 Article 50
  • Constitution of Uganda 1995 Article 237(2)(b)
  • Constitution of Uganda 1995 Article 2(2)
  • Constitution of Uganda 1995 Objective XXVII (National Objectives and Directive Principles of State Policy)
  • National Environment Act 2019 s.78
  • National Environment Act 2019 s.79
  • National Environment Act 2019 s.81(3)(b)
  • National Environment Act 2019 s.81(5)
  • National Environment Act 2019 s.82(1)
  • National Environment Act 2019 s.83(1)(d)
  • National Environment Act 2019 s.83(2)(a)
  • National Environment Act 2019 s.110
  • National Environment Act 2019 s.112
  • National Environment Act 2019 s.113
  • National Environment Act 2019 s.144
  • National Environment Act 2019 s.157

Cases cited (14)

  • P. K. Ssemwogerere & Another v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General of Tanzania v Reverend Christopher Mtikila [2010] EA 13
  • Amooti Godfrey Nyakana v NEMA & Others (Civil Appeal No. 5 of 2011)
  • ACODE v Attorney General (Miscellaneous Cause No. 1 of 2009)
  • Social and Economic Rights Action Centre (SERAC) & Centre for Economic and Social Rights v Nigeria, Communication No. 155/96
  • Oposa v Secretary of the Department of Environment and Natural Resources, 33 ILM 173 (1994)
  • Vellore Citizens' Welfare Forum v Union of India & Others (1996)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Attorney General v Salvatori Abuki; SCCA No llL99A
  • Advocates Coalition for Development and Environment v Attorney General (Miscellaneous Cause No. 1 of 2004)
  • Uganda Electricity Transmission Company v Desamaline Incorporation Ltd (Miscellaneous Cause No. 181 of 2004)
  • Sarla Goel & Others v Kishan Chand, 2009 AIR SCW 6549; (2009) 7 SCC 658
  • Citizens Bank of Bryan v First State Bank, 580 S.W.2d 344 (Tex. 1979)
  • K Mart Corp. v Cartier, Inc., 486 U.S. 281 (1988)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.