KAMPALA — Court has dismissed a case in which environment conservation organisations were challenging the legality of the certificate of approval granted to Hoima Sugar limited for the proposed Kyangwali mixed land use in part of Bugoma Central forest reserve in Kikuube District.
Kampala High Court Judge Musa Ssekaana held that it appears the complaints were premised on distorted facts and the NGOs attempted to suppress the real facts in order to make ‘flowery’ case in court by exaggerating that the entire forest is being cleared for sugarcane planting or that 5000 hectares (21 square miles) of the forest is being cleared for sugarcane growing.
“…This is not true and it is an alarmism since out of the entire leasehold certificate of title issued to Hoima Sugar Limited, they are supposed to plant sugarcanes on 2,393.8483 hectares against a total area of 5,579 hectares which is less than half. Secondly, the Bugoma Central Forest Reserve is still intact and Hoima Sugar Limited has been directed to undertake enrichment planting covering an area of 3.8919sq miles and must carry out regulated activities,” Justice Ssekaana ruled.
Justice Ssekaana ruled that the court was satisfied that the community was duly consulted and heard their views about the project and the court was not persuaded by the complainant’s argument that the people consulted were few in absence of any evidence to the contrary.
“The law does not require consultation of everybody in the community and this would definitely be an impossibility to achieve. The law does not prescribe or set any standard procedure and number of people to be consulted. The court would be wrong in setting a standard for the decision-maker to satisfy for the hearing of the views of the community about the said project. The court would leave the discretion to be exercised by the decision-maker on whether the community is satisfactorily consulted,” the judge ruled.
The court decision declared legal, the Environment and Social Impact Assessment (ESIA) approved by National Environment Management Authority (Nema) for sugarcane growing at Kikuube District.
“The complainants in order to attract the attention of the public and also to justify their existence as bodies concerned with environment protection and awareness are trying to make all sorts of unsubstantiated allegations to win public sympathy. Courts of law are strictly guided by the law and sensationalism should never be used to sway court in any matter. The key stakeholders were consulted and they made written representations but the applicants seem to argue as if no consultation was ever made before the certificate of approval was made,” the judge ruled.
The court observed Nema sent a copy of the ESIA to National Forestry Authority NFA and other stakeholders who made comments to the entire project and which comments were addressed before the approval of the project.
“…the different stakeholders were consulted before the certificate of approval of the Environmental and Social Impact Assessment Report was approved. The standard of consultation under the particular statutory context was satisfied since it is a general principle of fairness that the consulted party is able to address the concerns of the decision-maker. The concerns of the stakeholders and especially National Forestry Authority and Wildlife Authority were considered and this evidence is clearly set out on the court record,” the judge ruled.
Local NGOs Water & Environment Media network (U) ltd (WEMNET-U), National Association of Professional Environmentalists (Nape) and Africa Institute for Energy Governance (Afiego) vainly sued Nema jointly with Hoima Sugar Limited.
The organisations had sought for a court declaration that the approval of the Environmental and Social Impact (ESIA) Statement and the Nema issuing of the Certificate of Approval of ESIA Certificate to Hoima Sugar Limited for the Kyangwali Mixed Land Use Project was marred by flaws, procedural irregularities and without due recourse to the relevant provisions of the laws and regulations.
They contended that the Nema’s decision to issue a Certificate of Approval was in illegal and procedurally improper for not conducting a public hearing and or allowing public participation in decision making.
They argued that the process denied the interested parties including themselves a chance to effectively put forth their views aimed at protecting their rights to a clean and healthy environment.
According to the court decision, Nema Executive Director was not bound to hold any public hearing premised on rules since there was no controversy and there are no transboundary impacts.
Justice Ssekaana argued that the NGOs’ argument that there is a controversy in ownership of the land as well as a a pending Appeal against the decision of High Court is extremely weak and the executive director should not be used as court on legal matters which are pending in the Court of Appeal.
The court observed that NGOs are increasingly relying on public interest standing or Public concern standing to challenge governmental action and this preferred from individuals who are merely interested in personal fame
“The public bodies should not be disrupted unnecessarily, to the disadvantage of other members of the public, by having to contest unmeritorious proceedings. The courts should reserve their power to interfere with the working of public authorities to those occasions when there is a claim before them by someone who has been adversely affected by the unlawful conduct of which the complaint is made,” the judge ruled.
Public interest litigation should not be used for personal or political gains or for mere publicity or for other oblique reasons. Such public interest matters should be done by persons having expert knowledge in the field after making proper research especially if it is concerned with issues of constitutional law. It is true that public interest litigation has been abused and is increasingly used by advocates for publicity and or seeking prominence in the legal profession and it is now ‘Publicity Litigation’. It is supposed to be a special type of litigation which is essentially meant to protect basic human rights of the weak and disadvantaged who on account of poverty, helplessness, or social and economic disabilities could not approach the court for relief or for upholding the rule of law and constitutionalism or where a matter of grave public concern is involved.
The Court is charged under the National Objectives and Directive Principles of State policy in the Constitution to provide sustainable development and public awareness of the need to manage land, air and water resources in a balanced and sustainable manner for the present and future generations.
On the issue of conducting consultations, the judge held that a consultative meeting that exceeded the 85 people was conducted and that there is no legal provision that indicates any numerical requirement regarding the minimum number of people to be consulted.
In the statement issued on Saturday, Hoima Sugar Limited welcomed the decision saying that it is great milestone which will boost sustainable social economic transformation of Hoima and Uganda as a whole.
“This will be through job and wealth creation; both directly and indirectly, tax revenue remittances to the national treasury, improvement of social amenities such as schools and health facilities among others,” the company said in a statement.
On August 14 2020, Nema issued an ESIA certificate to Hoima Sugar Limited for the mixed land use on 21.54sq miles that is valid for the five years but to be revised upon request or when the project area conditions change.