• Francis Obonyo
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The rule of exhaustion of alternative remedy is not one that bars jurisdiction of the Court, but it is a rule which Courts have laid down in the exercise of their discretion

Water & Environment Media Network (U) Ltd & 2 Others versus National Environmental Management Authority & Hoima Sugar Limited, Consolidated Miscellaneous Cause Nos. 239 & 255 of 2020.

Background

The Applicants filed two separate applications premised on the same facts and the law under Articles 42, 39 and 50 of the Constitution and Section 33 and 36 of the Judicature Act Cap 13 and Rule 3, 4, 6 & 7 the Judicature (Judicial Review) Rules, 2009 and Regulation 38 of the Environmental Impact Assessment Regulations S.I No. 153.

Brief Facts

On 26th June 2020 in a meeting with National Forestry Authority over plans to save Bugoma Forest campaign, the Applicants got wind of the fact that the Hoima Sugar Limited had commenced the process of an Environmental and Social Impact Assessment study for Kyangwali Land Use Mixed Project despite pleas from the National Forest Authority (NFA) to NEMA not to undertake the same due to the ongoing court cases over Bugoma forest. On 14th August 2020, NEMA issued a certificate of approval for an Environmental and Social Impact Assessment (ESIA) to the Hoima Sugar Limited for Kyangwali Land Use Mixed Project to among others grow sugar cane on Bugoma Forest land. The said Certificate of Approval was improperly issued and without following the statutory procedures laid down under the laws and regulations, thereby denying the Applicants and other interested parties a chance to effectively put forth their views aimed at protecting their right to a clean and healthy environment and protection of the country’s natural resources. The issuing of the Certificate of Approval of the Environmental and Social Impact Assessment would allow Hoima Sugar Limited to commence its sugar cane project and thereby destroying Bugoma forest, a critical sensitive biodiversity-ecosystem in Uganda without according the applicants and other interested Ugandans a chance to present their views aimed at the protection of their fundamental right to clean and healthy environment.

 

The ruling of the High Court

In its determination of these applications, the High Court noted that the Applicants in this matter had a standing as a responsible organization concerned on matters of public concern in relation to conserving the environment and they do not have any special interest nor have they suffered any personal injury but their interest is what is referred to as ‘Public Concern Standing’.

Hon Justice Musa Ssekaana stated that:

“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 High Court stated that in the present case the NEMA Statute allowed the court to exercise its discretion in avoiding existing alternative remedies and procedures and does not limit the jurisdiction of the court. The Act overrides the subsidiary legislation that provides for the exhaustion of alternative remedies. The requirement of exhaustion of alternative remedies should not be rigidly imposed, and nor should it be used by decision-makers/ administrators to frustrate the efforts of an aggrieved person or to shield the administrative process from judicial scrutiny.

It should be noted, however, that notwithstanding this interpretation and application of the Act, the 1st respondent went ahead and sent a copy of the Environmental and Social Impact Assessment to National Forestry Authority and other stakeholders. Indeed they made their comments to the entire project which comments were addressed before the approval of the project. The 1st respondent wrote to the Prime Minister of Bunyoro Kingdom, The Permanent Secretary, Ministry of Agriculture, Animal Industry and Fisheries, The Commissioner, Forestry Sector Support Department-Ministry of Water and Environment, Executive Director, Uganda Wildlife Authority, Executive Director, National Forestry Authority, Chief Administrative Officer, Kikuube District Local Government.

The High Court, therefore, held that this court is satisfied that the community was duly consulted and heard on their views about the project and the court is not persuaded by the applicant’s counsel’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.

Verdict

The application fails and is accordingly dismissed and but each party shall bear its costs.

 

Key Implication of the ruling of the High Court

From its ruling on the application for judicial review, the High Court—

(a) re-emphasized that public interest litigation is concerned with issues of constitutional law and basic human rights for the 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.

(b) re-affirmed that the High Court has unlimited jurisdiction. This was deduced from the provision of the National Environment Act No 5 of 2019 in Section 140 (1) and (2); that the jurisdiction of the court is not limited and any party dissatisfied may have recourse to the court without exhausting the available alternative remedies. Even in the face of an alternative remedy, the discretion lies with the High Court to entertain the application for judicial review

Conclusion

The ruling in this application makes it clear that the rule of exhaustion of alternative remedy is not one that bars the jurisdiction of the Court, but it is a rule which courts have laid down in the exercise of its discretion.

 

Disclaimer

No information contained in this alert should be construed as legal advice from the Centre for Public Interest Law or the individual authors, nor is it intended to be a substitute for legal counsel on any subject matter.

For additional information in relation to this alert, please contact the following:

Gad A. Kisaalu

Programme Officer, Litigation.

legal@cepiluganda.org