Wakilii

Nyakaana v National Environment Management Authority and Others (Constitutional Appeal 5 of 2011)

Supreme Court · [2015] UGSC 14 · 2015 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from the Constitutional Court's dismissal of a constitutional petition challenging the constitutionality of statutory provisions
Decision
Appeal dismissed by a 6:1 majority; the constitutionality of sections 67, 68 and 70 of the National Environment Act upheld

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Holding

The Supreme Court, by a 6:1 majority, dismissed an appeal challenging the constitutionality of sections 67, 68 and 70 of the National Environment Act, which empower NEMA to issue and enforce environmental restoration orders without a prior hearing. The Court held that the right to own property is not absolute and must be read together with the constitutional duty to protect the environment (Articles 237(2)(b), 242 and 245). The impugned sections contain in-built fair-hearing safeguards — the right to seek reconsideration and be heard orally (s.69) and to appeal to court (s.67(5)(b)) — which the appellant ignored. The provisions were therefore not inconsistent with the Constitution. Kisaakye JSC dissented.

Facts

The appellant was the registered leasehold proprietor of land at Plot 8, Plantation Road, Bugolobi, Kampala, obtained from Kampala City Council for constructing a residential house. He obtained approvals and began construction. In June 2004, NEMA inspectors found that the construction lay within Nakivubo wetland. The appellant attended a community sensitization meeting on 25 July 2004 where residents were advised to suspend all activities, but he continued building despite repeated warnings from inspectors. NEMA issued an environmental restoration order requiring him to demolish the structure within 21 days. He failed or refused to comply, and did not seek reconsideration of the order. On 8 January 2005, NEMA demolished the building. The appellant petitioned the Constitutional Court, challenging the constitutionality of sections 67, 68 and 70 of the National Environment Act as inconsistent with his rights to property, fair hearing and privacy. The Constitutional Court dismissed the petition with costs, and he appealed to the Supreme Court.

Issues

  1. Whether the appellant's certificate of title, land and house constituted property with rights guaranteed and protected under the Constitution.
  2. Whether the appellant's land was a wetland subject to the management of the National Environment Management Authority.
  3. Whether sections 67, 68 and 70 of the National Environment Act, and the procedure for demolishing the appellant's property thereunder, are inconsistent with or contravene Articles 21, 22, 24, 26, 27, 28, 42, 44, 237 and 259 of the Constitution.
  4. Whether the matters complained of raised a question of constitutional interpretation under Article 137(3) of the Constitution.

Orders

  • By a six to one majority, the appeal is dismissed.
  • Costs awarded to the 1st and 2nd respondents in this Court and in the court below.
  • The 3rd, 4th, 5th, 6th and 7th respondents to bear their own costs.

Key headnotes

Constitutional Law — Right to Property — Limitation by Environmental Protection Duty
The right to own property under Article 26 of the Constitution is not absolute; it must be read together with Articles 237(2)(b), 242 and 245, so that a landowner's title does not preclude the State from regulating land use or protecting a wetland on that land for the common good.
Public Trust Doctrine — Wetlands Held in Trust by the State
Wetlands and other natural resources are held by the Government in trust for the people under Article 237(2)(b) of the Constitution, and gazettement is not a precondition for their legal protection.
Right to Fair Hearing — Adequacy of Statutory Safeguards in Administrative Action
A statutory scheme does not violate the right to fair hearing where it affords the affected person an opportunity to be heard through reconsideration of the order and to be heard orally before final implementation (s.69), together with a right of appeal to court (s.67(5)(b)); the requirements of natural justice depend on the circumstances and the nature of the inquiry.
Environmental Restoration Order — Analogy to a Criminal Charge Sheet
An environmental restoration order issued under the National Environment Act is analogous to a charge sheet that initiates proceedings; it does not require a prior hearing of the affected person, as the law subsequently affords that person the opportunity to respond, to be heard and to challenge the order in court.
Sustainable Development — Precautionary and Polluter Pays Principles
The precautionary principle and the polluter pays principle are essential features of sustainable development and must be applied by the State in discharging its constitutional mandate to protect the environment and guarantee a clean and healthy environment.
Constitutional Interpretation — Rule of Harmony and Purpose-and-Effect Test
In determining the constitutionality of legislation, the Constitution must be read as an integrated whole with no provision destroying another, and both the purpose and effect of the impugned legislation must be considered.
Constitutional Jurisdiction — Distinction Between Interpretation and Enforcement
A petition alleging that a law is inconsistent with the Constitution raises a matter of constitutional interpretation properly within the unlimited jurisdiction of the Constitutional Court under Article 137(3), and is not a mere enforcement matter cognisable only under Article 50.

Legislation cited (29)

  • National Environment Act (Cap 153) s.67
  • National Environment Act (Cap 153) s.68
  • National Environment Act (Cap 153) s.69
  • National Environment Act (Cap 153) s.70
  • National Environment Act (Cap 153) s.71
  • National Environment Act (Cap 153) s.36
  • National Environment Act (Cap 153) s.2
  • National Environment Act (Cap 153) s.3
  • National Environment Act (Cap 153) s.4
  • National Environment Act (Cap 153) s.6
  • National Environment Act (Cap 153) s.101(a)
  • Constitution of Uganda 1995 Article 26
  • Constitution of Uganda 1995 Article 28
  • Constitution of Uganda 1995 Article 42
  • Constitution of Uganda 1995 Article 43
  • Constitution of Uganda 1995 Article 44
  • Constitution of Uganda 1995 Article 137(3)
  • Constitution of Uganda 1995 Article 237
  • Constitution of Uganda 1995 Article 242
  • Constitution of Uganda 1995 Article 245
  • Constitution of Uganda 1995 Article 39
  • Constitution of Uganda 1995 Article 8A
  • Constitution of Uganda 1995 Article 20
  • Land Act (Cap 227) s.43
  • Land Act (Cap 227) s.44
  • Land Act (Cap 227) s.23
  • Criminal Procedure Code Act (Cap 116) s.10
  • Criminal Procedure Code Act (Cap 116) s.15
  • National Environment (Wetlands, River Banks and Lake Shores Management) Regulations S.I. No. 3/2000

Cases cited (17)

  • Diedrichs-Shurland v Talanga-Stiftung [2006] UKPC 58
  • John Ken Lukyamuzi v Attorney General and Electoral Commission (Constitutional Appeal No. 2 of 2007)
  • Ridge v Baldwin [1963] 2 All ER 66
  • Mpungu & Sons Transporters Ltd v Attorney General (Civil Appeal No. 17 of 2001)
  • Paul K. Ssemogerere and Others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • THE QUEEN -Vs- BIG DRUG MARK LTD 1996 CLR 332
  • South Dakota v North Carolina 192 US 268
  • Vellore Citizens' Welfare Forum v Union of India (1996) 5 SCC 647
  • Rev. Bakaluba Peter Mukasa v Betty Nambooze Bakileke (Civil Appeal No. 4 of 2009)
  • Russell v Duke of Norfolk [1949] 1 All ER 109
  • Omunyokol Akol Johnson v Attorney General (Civil Appeal No. 6 of 2012)
  • National Council for Higher Education v Anifa Kawooya Bangirana (Constitutional Appeal No. 4 of 2011)
  • Attorney General v Susan Kigula and Others (Constitutional Appeal No. 3 of 2006)
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
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