ENVIROMENTAL CRIMES:

ANALYSIS OF THE POLLUTOR PAYS PRINCIPLE AND ITS EFFECTIVENESS IN THE

A RESEARCH PROPOSAL

BY
MUTONYI ZULAIKHA
FIRM G7
INDEX NO: BAR/FEB/LRA/2391/2021

SUPERVISOR: MR. MULALIRA UMAR FAIZO

A RESEARCH PROPOSAL SUBMITTED TO THE LAW DEVELOPMENT CENTER IN

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1.0 Introduction
This research will focus on the environmental effects that result due to the growth of industries in
respect of any sort of Pollution in Uganda particularly Mbale industrial Area and examining the
polluter pays principle and its effectiveness in the preservation of the environment in Uganda as
envisaged in the constitution1 , its legal underpinnings and the extent to which the same has been
realized for the people around Mbale Industrial area. The research will also argue that there is
need for internalization of environmental costs into decision making for economic and other
development plans, projects that are likely to effect the environment.
1.1 Background of Study
The polluter pays principle (PPP) was developed in the 1970s as an economic principle within
the framework of the Organization for Economic Co-operation and Development (OECD) and
the European Economic Community (EEC). Its aim was to internalize external costs in order to
avoid distortions of trade and competition. It was initially recognized in regional soft law
instruments of these two organizations. In 1972 the OECD 2 first articulated PPP as the principle
to be used for allocating costs of pollution prevention and control measures to encourage
rational use of scarce environmental resources and to avoid distortions in international trade and
investment.
The Polluter Pays Principle was incorporated into RIO Declaration of Environment and
Development3
The OECD emphasizes the necessity for removal of subsides which would prevent polluters to
bear the costs of pollution which they caused urging then those costs be internalized into prices
of goods and services this implies that the polluter should bear the expenses of carrying out the
measures decided by the public authorities to ensure that the environment is in an acceptable
state and that the cost of these measures should be reflected in the cost of goods and services
which cause pollution in production and or consumption. The EEC also advocated PPP in its 1 st
Environmental Action Programme4, which included in its statement of the general principles of
EEC environmental policy, inter alia, that the cost of preventing and eliminating nuisances must
in principle be borne by the polluter. This principle was further elaborated in Recommendations
of 3 March 1975 regarding cost allocation and action by public authorities on environmental
matters, which stated that the European Communities and Community level and the Member of
States in their national legislation on environmental protection must apply the polluter pays
principle. In principle, bear the cost of pollution, its noteworthy that this universal formulation is
weaker than that contained in the aforementioned European instruments.
1.2 Statement of a problem

1
Of the Republic of Uganda 1995
2
Guiding Principles Concerning the International Economic Aspects of Environmental Policies.
3
Principle 16
4
Of 1973

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Uganda as a developing country concentrates more on establishment of both public and private
ones, for example in Mbale industries are established due to enough land for example the recent
construction of the SINO UGANDA INDUSTRIAL PARK which has attracted a lot of
factories in Mbale other than the old industries like Ntake Bakery Ltd, Mount Elgon Millers Ltd,
and many more. The constitution of the Republic of Uganda 5 as a supreme law has provided
rules and regulations for example under Article 254. The parliament and other agencies have
been permitted to make environmental law to protect the environment from harmful activities
like the National Environment Management Act, Industrial license Act and others. Therefore the
Government mandated to ensure that there is sustainable development to ensure that the
environmental benefits the present and future generations. The constitution further provides that
natural resources in Uganda shall be managed in such a way as to meet the development and
environmental needs of present and future generations. The State shall take all possible measures
to prevent or minimize damage and destruction to land, air and water resources resulting from
pollution or other causes.
Under Article 396 provide that, every Ugandan has a right to a clean and healthy environment.
This means that, a clean and healthy environment is to be enjoyed by every Ugandan regardless
of social, economic or political statements. The NEMA 7provides for quality standards, water
quality standards and many more. The enforcement of the above laws has been a challenge due
to corruption.
It is from this background that I am interested in carrying out this research to recommend the
government and other public institutions to enact new Laws and regulations which reflect the
current status of our environmental hence observing the prevention of the environment. In
envisaging the current principle, I sought an enhancement with the enforcement of the polluter
pays principle.
1.3 Objective of the study;
This research study will be guided by general and specific objectives;
1.3.1 General Objectives
The general objective is to analyze the Polluter Pays Principle and its effectiveness in the
preservation of the Environment in Uganda. A case study in Mbale industrial Area.
1.3.2 Specific Objectives
The study will examine the following objectives
1. To examine the legal instruments in Uganda where the polluter pays principal is
applicable.
2. To identify the causes of pollution in Mbale Industrial Area and investigate the
effectiveness of the polluter pays principle in preserving environment in Uganda.
3. To examine the general principles of environmental law including access to justice,
information, and public participation on polluter pays principle.

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1995 as amended.
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Of the 1995 constitution of the republic of Uganda.
7
National Environmental Management Authority.

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 4. To examine the International environmental law on International Treaties, conventions
and protocols where polluter pays principle is envisaged and analyze the systems for
decision making in monitoring the implementation of the polluter pays principle in
Uganda.
1.4 Research Questions.
What is the legal and institutional frame work on environmental management and preservation
against pollution in Uganda?
What are the impacts of industrial environmental pollution in Uganda.
What are the causes of pollution to surrounding areas of Mbale Industrial Area.
How has the Polluter Pays Principle minimized pollution of the environment in Uganda.
1.5 Scope of the study.
The proposed study is to be carried out in Academic Year 2021/2022 from the month of April
to December as the research is a partial requirement for the award of the post graduate diploma
in legal practice.
The study will concentrate specifically around Mbale Industrial area as it experiences all sorts of
pollution caused by the industries established in there due to the recent construction of Sino
Industrial Park.
The study will be limited to analysis on polluter pay principle and its effectiveness on
preserving environment in Uganda with due regard given to the environmental laws implanting
agencies such as NEMA, wetland department of the ministry of environment, Ministry of gender
and labor with specificity on the occupational health and safety department, KCCA as well as
Local government official mandated to restore order at the at the local government levels.
1.6 Significance of the study
This study is significant because the findings if adopted, the principle could help in its effective
preservation of environment in Uganda.
The findings of study will also fill the loopholes concerning the environment.
The findings could also help contributed to the body of knowledge in-regards to the polluter pays
principle in the prevention of pollution.
Finally, this study will be carried out in partial requirements for the passing of the Bar course.
1.7 Methodology
The research study will involve the use qualitative method, according to Leedy 8this
methodology is aimed at the description. By utilizing qualitative methodologies the research is
able to evaluate both formal and normative aspects of political activity.

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Established on 2001:148

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These principles recognize that law does not implement itself and that appropriate access
depends on a variety of conditions such as rights awareness, capacity building, civil service
structures or record management.
The study will focus on the descriptive approach as it will be necessary to observe and describe
the analysis of the polluter pay principle. Thus the researcher will able to utilize a descriptive
approach so as to be able to assess the protection of the industrial properties.
1.8 Limitations of the study
I will expect some challenges during the study.
Poor attitude of some respondents will be one of such. For example some officers in certain
departments may tend to be rude.
The long process of data collection.
High transport costs as this will involve moving from one place to another during data
collection.
Limited access to data.
Language barrier
1.9 Conceptual Framework
The conceptual framework consists of the independent variables whereby environmental law
composes of environmental development, environmental impact assessment sectors which is
affected by the dependent variable of environmental management, active coordination among
various departments, retrenchment and decentralization, conservation of natural resources and
violation of environmental laws. And the intervening variables comprises of good government
policies, tax anti- pollution policies and environmental principles like the Polluter Pays Principle.
1.10 Literature review.
Various authors and writers have expressed their views in regard to the polluter pays principle
Mayer9 states that the practice of the polluter pays principle does not conceive that all costs
should be assumed by the polluter. An example of this can be found in the international Law
Commission’s10
Beyerlin, V and Marauha.T11 describe the Polluter Pays Principle as having a normative
quality as a ruler rather than a principle since it is neither designed to be considered in relevant
decision making that occurs when the production or consumption of a product results in cost to a
third party, nor intended to be used merely for interpretative guidance. They state that PPP
directly calls upon states to ensure that in every case where the environment has been, or is going
to be, polluted, the accountable person bears the costs of clearing or preventing pollution.

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2018 The international law on climate change.
10
Draft guidelines on the protection of the atmosphere.
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(2011). International Law

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Sands and Peel12 explain that the application of PPP to specific cases and situations remains
open tom interpretation, particularly in relation to the nature and extent of the costs included and
the circumstances in which the principle will not apply. Nevertheless, the principle has attracted
Broad support and is closely related to the rules governing civil and state liability for
environmental damage, the permissibility of certain forms of state subsidies, and the
acknowledgement in various instruments by developed countries of the responsibility they bear
in the international pursuit of sustainable development in view of the pressures their societies
place on global development.
1.11 Chaptalization
The research contains five chapters that is to say; chapter one includes general introduction of
the study, chapter two explains the definitions and the role of the Polluter Pays Principle in
preserving the environment, chapter three contains an over view of the legal framework relating
to industrial pollution in Uganda, chapter four explains the impact of pollution in Mbale
industrial area and finally chapter five explains the possible solutions and recommendations in
combating environmental pollution in regard to enforcing the Polluter Pays Principle in Uganda.
Bibliography
1 The 1995 Constitution of the Republic of Uganda.
2 The National Environment Act 2019.
3 Beyerlin,v & Marauha.T, T (2011). International Environmental Law.
4 Hart. De Sadeleer, N.(2020) Environmental Principles
5 Zahar, A.(2020). The Polluter Pays Principle and its ascendancy in climate change law.

CHAPTER TWO
THE CONTROL AND APPLICATION OF POLLUTER PAY PRINCIPLE
2.1 Introduction
The concept of clean and healthy environment In Uganda, the right to a clean and health
environment is established under several laws including the Constitution 1995, the national
environment Ace8
, land Act39, water Act40, among others. Environment is thus, defined under
section 1 of the national environment Act to mean the physical factors of the surrounding of
human beings including water, land, atmosphere, climate, sound odor, taste, the biological
factors of animals and plants and the social factors up of an esthetic and included both natural

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2012 principles of international environmental law.

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and the built environment. The preamble to the 1995 Constitution, objective 25 of the national
objectives and directive principles of State policy enjoins the State to promote the preservation of
the environment. The right to clean and healthy environment is thus provided under Article 39
and affirmed by Article 17(1) (8) which impose a duty on every citizen to maintain a clean and
healthy environment.
2.2 Precautionary Principle
The precautionary principle evolved from the earlier principle of preventive action. It addresses
problems of environmental decision-making under conditions of scientific uncertainty. Whereas
the principle of preventive action was based on the recognition of the need to act to prevent
certain harm, the precautionary principle is coupled with the idea of risk avoidance. The mere
existence of a risk of harm is considered a sufficient basis for the adoption of preventive
measures. While the principle is now widely referred to in national and international law and
policy, it remains highly controversial in its interpretation and application. It is disputed, for
example, whether the principle actually reverses the burden of proof, i.e. whether it puts actors
under an obligation to prove that the activities which they are engaged in do not cause harm.
Moreover, there has been much debate over terminology. The United States, for example, has
preferred to refer to the precautionary approach, while other countries have opted to speak of the

precautionary principle, a tem1 which canies more normative weight. Also, the scope of
application of the precautionary principle is unclear as well, as some states, most notably the
members of the European Union, claim that it extends to issues of human health and consumer
protection, whereas others maintain that it applies only to the prevention of envirot1111ental
harm.
From national law, the principle made its way in Europe into regional soft law and regional
MEAs in the late 1980s. However, the World Charter for Nature, a universal soft law instrument,
already contained a precursor of the principle in 1982. It held that 'where potential adverse
effects are not fully understood, the activities should not proceed.41 The principle was
recognized
more explicitly in the 1992 Rio Declaration. Principle 15 states that 'In order to protect the
environment, the precautionary approach shall be widely applied by states according to their

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capabilities.' The stat11s of the principle in universal MEAs is disputed. Some conventions
include hortatory provisions encouraging parties to take 'precautionary measures42 while others
require their parties to be 'guided by43 the precautionary principle or even to apply it.44 Other
instruments still refer to the precautionary approach in their preamble.45 In a judicial context, the
precautionary principle has been applied by the International Tribunal for the Law of the Sea in
recent disputes concerning the management of fish stocks,46 radioactive pollution of the marine
enviromnent47 and land reclamation works.48
It should be noted that states are not always consistent in their positions with respect to the
precautionary principle. In the latter case, for instance, Malaysia, which in some multilateral
negotiations has sided with the US in opposing recognition of precaution as a general principle,
as a claimant state whose enviromnental interests were threatened by land reclamation activities
canied out by its neighbour Singapore, argued in its request for provisional measures: 'The
rights of Malaysia .... relating to the maintenance of the marine and coastal enviromnent. .... are

guaranteed by ... the precautionary principle, under international law, must direct
any state party
[to UNCLOS] in the application and implementation of [its] obligations.49
Article 245 enjoins parliament to make laws for protection and preservation of the environment
from abuse, pollution and degradation.
Section 3 (I) of the national environment Act puts into action the constitutional provisions by
providing that every person has a right to a health envirmm1ent. The right to clean and healthy
environment was further reaffirmed by the supreme court of Uganda in the case of Rural
litigation and Entitlement Vs Ultar Pradesh50 in which the court stressed the right to live in a
healthy environment is a fundamental right and issued an order to cease mining operations
notwithstanding the significant investment of the money and time by the mining company. Under
the treaty of East Africa community 1999 to which Ugandan is a signatory, patiner States are
mandated to; promote a sustainable utilization of natural resources and safe guard the right to
clean a11d health environment.
Principle 2 of the Stockholm declaration, likewise states that, the natural resources of the eatih

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including the air, water, flora, a11d fatma are representative sample of natural eco-system must
be
safeguarded for the benefit of present generation and future generations through careful planning
and management. The principle has since been incorporated in Article 3 of United Nation
Fratnework Convention on climate change (1992). In the final analysis, the law (pollution laws)
can be used to protect the environment.
2.3 The concept of sustainable development
Historically before the modern developments come into existence, human family has learnt to
live in harmony with the environment for thousands of yem·s but with the emergence of modern
development, there was massive environmental destmction globally, the result is global
warming51 . Also, in modern world today, it is not possible to have high quality environment
without development. In addition, development can only be achieved through environmental
sound management and therefore, there is need to balance environmental protection and
development through a sustainable manner. Sustainable development, which conserves land,
water, fish, plant, and animal resources, is thus, considered environmentally sound and
nondegrading, economically viable, and socially acceptable. Thus, sustainable measures tmder
the
enviromnent Act are environmental impact assessment, collaboration with local authorities,
control of pollution, restoration orders among others. 52
The concept dictates that whatever man and woman do on this planet should not put the life of
future generation into jeopardy. The protection of the environment has been perceived as being
paramount importance to the future of humankind. Sustainable use is defined under section I of
the national environment Act as present use which does not compromise the right to use the
recourses by future generation. Sustainable development thus, means development that meets the
needs of the present generation without compromising the rights of future generation. In Uganda,
the principle has been incorporated under objective 27 of the
National objectives and directives of State policy in the preamble to the Constitution. It
provides for utilization of the natural resource to be managed in a sustainable manner, and to
meet the demands of current generation and the future generation. Several Laws were enacted to
operationalize the principle, it includes, land Act, national environment Act, water Act, forest
Act, and local government Act. The authority (NEMA) which is the lead agency, is also

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mandated to provide for environmental action plan to the formulation of sustainable
development. In order to achieve this, the authorities imposed regulations in the plruming
system53. The local authority for example, introduced planning system know as development
control land use, permission known as approval is required for change in the land use by the
developer. Planning approval is normally granted if the application is in accordru1ce with local
development plan policies.
The planning system known as development controls land use plays a role in protecting the
enviroun1ent. Development control is based on laws that require plruming permission through
the
local planning authority to chru1ge the current land use. In such a case, the plruming authority
also helps regulate pollution. The authorities will grant a certificate of change of land use which
normally atu·acts a statutory fee. Injunctions can also be taken against actual or anticipated
breaches of planning permission. An environmental and social impact assessment (EIA) is
mandatory for all major developments; EIA is the process of gathering information, which is
carr-ied out by the developer and other bodies.
Section 19 of national the environment Act provides for EIA requirement. The third schedule to
the Act provides for lists of projects that requires an EIA assessment. In providing environmental
study report, licensed practitioners are the only recognized body to assess the impact. The report
will indicate the measures undertaken in mitigating the damage. Likewise section 10 of the
investment Act provides for a mandatory investment license to be obtained before any kind of
investment is undertaken in Uganda. Under section 17 of the national environment Act, national
enviro1m1ental management authority is vested with the powers to prepare a national
environmental action plan.
Section 18 is planning at the district level. The second aspect as far as sustainable development is
concerned is the statutory consultation.
Section 2 (2) (b) of the national environment Act, provides for maximum patiicipation by the
public in development policies. All this are measures to protect the environment while at the
same time appreciating the need for development.
2.4 Pollution control
There are four main principles enshrined in environmental law, these are, preventive principle,

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precautionary principle, polluter pays principle, and sustainable development. Principles such as
these along with other environmental policies are referr-ed to as soft law aimed at protecting the
environment under the mandate of the lead agency (national enviromnent management agency)
(NEMA). In environmental law, polluter Pays Principle" (PPP) was enacted to make the party
responsible for producing pollution responsible for paying the damage done to the natural
environment. In other-words, the polluter should repair the damage he or she has caused either
by making actual reparation or paying the necessary monetary compensation to society. Such
compensation which varies depending on the degree of pollution can be paid either before or
after the event (pollution). Where there is an environmental damage, compensation paid is to be
spent on the restoration of the environment. The rationale is under Article 3 8 of the Constitution
which guarantees every citizen absolute right to clean health, therefore, if one causes pollution of
whatever nature, the burden of pollution costs shifts from the public to the polluter. In the eyes of
equity it is only fair and just that the burden in terms of costs (monetary tenns) of polluting the
environment should be borne by the polluter than the public to make good for the damage caused
to the environment. It is tmjust to derive environmental benefits solo and ignoring the risk. The
principle is the commonly accepted practice that those who produce pollution should bear the
cost of managing it to prevent damage to human health for instance, a factory that produces
potentially poisonous substance as a byproduct of its activities is usually held responsible for its
safe disposal.
Pollution licenses are envisaged to be applicable where activities will or likely to cause pollution
or degradation beyond the established standards.
The whole concept of "Polluter Pays" is hinged on the concept of the public trust doctrine as
environment a! benefit being a common heritage. 54
The public tmst doctrine represents a viable legal tool for establishing a system of governance
that provides a dynamic and intercmmected framework for intergenerational responsibility for
the management of natural resources.
2.5 Application of the principle Brief history
The first mention of the principle at the international level is to be found in the 1972
recommended by the OECD Council on guiding principles concerning international economic
aspects of environmental policies, where it stated that the principle to be used for allocating costs

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of pollution Prevention and control measures to encourage rationale use of scarce envirorunental
resources to avoid destruction in international trade and investment is the so called pollution pays
principle. It went on to elaborate55• This principle means that the polluter should bear the
expenses of canying out the above mentioned measures decided by public authorities to ensure
that the environment authorities to ensure that the envirorunent is in-acceptable state".
The principle was also reaffirmed in the 1992 Rio declaration, at principle 16, national authority
should endeavor to promote the internalization of environmental costs and the use of economic
instrnments taking into account the approach polluter should in principle bear the cost of
pollution with due regard to public interest. The principle has fully been implemented in Uganda
laws and policies in the areas of drinking water, Development and Sewerage treatment. Pollution
is defined as any byproduct of a pollution or consmnption process that harms or otherwise
violates the property rights of others56. Thus, environmentalist such as Brenda defined a
"polluter" far more broadly not as someone who is simply using his own property and resources
in a way that offends the environmentalist because in such cases there are no victims to
compensate, the payment goes to the government inform of a tax. In such cases the principle
(PPP) is used to promote an environmental agenda rather than to insure that real polluter pay
compensation to the real victim of their activities, and therefore, forcing polluters to bear the
costs of their activities is a good economics says Brenda.
Ultimately all human activities involving damage to the natural environment can be taxed from
their consumption and production activities. The tax will be paid either in the form of an
emission fee or an excuse tax on the sales of products that are associated with pollution. In other
jurisdiction (develop countries) the tradable permits approach would first have the government
established an overall acceptable level of emissions for an industry and would then distribute
permits for that level of emission to companies within industries. The companies would then buy
and sell this emission permits based on their needs to emit the pollutant. In so doing the polluters
are made to pay for their polluting activities either through tax or through the purchase of permits
from others in the industry. Pollution according to environmentalists such as Brenda Short means
a contamination by a chemical or other pollutant that renders part of the environment until for
intended or desired use.
It is triggered by industrial and commercial waste, day to day activities. Some of the common

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pollutions (domestic) thus are air pollution, water pollution, noise pollution, solid waste
pollution, contaminated land and dumping of waste materials (hazardous, non-hazardous). In
addition, the sources of pollution include factories, industries, quarrying, power station, power
lines, among others. The "polluter pays" principle in contemporary Uganda is evidenced in a
number of legislation. It includes inter alia, the national environment Act, water Act, wildlife
Act57, land Act, (Section 43 provides for utilization of land according to various laws including,
the forest Act, the mining Act, the wildlife Act, among others), penal code Act58, fisheries Act,
local government Act, investment Act, national forestry and tree planting Act, and a number of
policies and regulations.
The national environment Act establishes NEMA as the overall body and principal agency
responsible for coordinating and monitoring all aspects of environmental management in
Uganda. NEMA is mandated inter alia, to develop standards, laws and other measures in
environmental management. In addition to management of natural resources, the Act contains
provisions on the control of pollution. The Act provides for mechanisms to establish
envir01m1ental standards and criteria for what is considered environmentally acceptable
behavior
and phenomena. Where a person wishes to exceed the standards, which have been set, such a
person must apply for a pollution license under part VIII of the Act. The Authority or a court
may issue a restoration order requiring the person to cease the activities or to restore the
environment as much as possible to its original state if the person's activities are likely to affect
the environment. It must be noted that restoration order under section 67 of the Act, can be
enforced by the Authority even without a court order and at the cost of the person violating the
law. In Amooti Godfrey Nyakana Vs NEMA and 6 others restoration order was served on
Nyakana by NEMA, the order required Nyakana to comply with the condition stated in the order,
he failed to do so and his unfinished house was demolished. The court noted inter alia that, the
purpose of the section (67) of the national enviromnental Act is to give NEMA powers to deal
with and protect the enviromnent for the benefit of all including Nyekana. The petition was
therefore dismissed.
Personal accountability in form of civil and criminal justice is another form of environmental
conservation. Part XIII of the national environment Act creates enviromnental offences, an1ong

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many other offences are, offences relating to enviromuental standards and guidelines and
offences relating to hazardous waste, materials, chemicals and Radioactive substance. The
objectives of the water Act include the promotion of the provision a clean, safe and sufficient
supply of water for domestic use to all persons. It also provides for provision for control
pollution treatment discharge and disposal of waste. The water Act also makes provision for
water permits. According to section 18, it is not allowed to construct or operate any works unless
authorized to do so by a permit granted by the director. A holder of a permit is not permitted to
cause or allow any water to be polluted; and has to prevent damage to the source from which
water is taken or to which water is discharged after use. The Act also provides for offences.
Section 31 provides that a person commits an offence who, unless authorized by the Act, causes
or allows waste to come into contact with any water, such a person may apply to the director for
water for a waste discharge permit in the prescribed manner59• Under the Uganda wildlife Act,
the objectives include inter alia, to provide for sustainable management of wildlife, the Act
provides for protected species under a permit. The Act further creates a number of offences in
the conservation areas. Such offences may be by way of imprisonment or fines or both. The Act
creates what is known as wildlife use rights established under section 29. There are classified
into categories ranging from class A-F, the wildlife use rights are granted upon application and
prescribed fee. The national forest and tree planting Act60 likewise prohibits certain activities
including, destruction of forest produce among others. The Act requires a person to obtain
license for any activities within the forest reserves. Such permits like, forest produce movement
permit is granted payment of a prescribed fee. The mode of payment for such pollution is by way
of prescribed fee, under section 58 and section 62 of the national environment Act provides for
pollution licenses, the licenses are granted according to volume of pollution say, the higher the
pollution the greater the fee.
The fee will then be used to conserve the environment. As to whether the fee is adequate to make
good the damage caused is a different matter. There are other activities which require specific
permits such as, the import, manufacturers and disposal of hazardous chemicals wastes and
substance. For example, polluter pays principle (also known as extended producer
responsibility), (EPR) was traditionally a concept where manufacturers and importers of products
should bear a significant degree of responsibility for the environmental Impacts of their products

14
through the product of life cycle.
The principle is thus an environmental policy that requires the costs of pollution be borne by
those who cause it. In its original emergence the polluter pays principle aims at determining how
the cost of the pollution prevent and control must be allocated, all in all the polluter must pay.
This principle underpins most of the regulation of pollution affecting land, water, air. Today the
principle is generally recognized as a fundamental principle of international environment law
which has widely contributed to the protection of environment globally.
Under section 29 of the water Act, it provides that the holder of waste discharge pern1it to take
measures at his own cost to install pollution control and to provide monitoring equipment. The
protocol for sustainable development in lake Victoria Basin is also a treaty adopted in 2001 that
calls for polluter pays principle. It provides, a person that causes the pollution shall as far
possible bear any cost associated with it. Under Uganda national water development report of
2005, as a way of implementation of the principle, comprehensive regulatory mechanisms have
been established under the government levies a pollution charge on all major pollutants. This has
encouraged potential polluters to invest on efficient onsite treatment system to reduce their
pollution discharge and thus minimize pollution charges. For example Uganda clays factory, in
order to mitigate the high cost, the polluters (clay factory) filled the holes created as a result of
bricks and tiles production with water and planted trees and fish pond. In addition, gave
neigbours free seed lines to plant around the factory. Therefore, forcing polluters to bear the
costs of their activities is also said to enhance economic efficiency and therefore policies based
on a polluter pays shall enable us to protect the environment without sacrificing the efficiency of
a free market economy system ..
The principle (PPP) as it is co111111only involved becomes a tool for those who seek to expand
public sector control over the use of natmal resomces. The idea that polluters should be made to
pay for the damage that they cause pollution has a basic appeal to our sense of justice and fair
play. It is just a simple extension of the idea that people should be held accountable for their
actions. Proposals ranging from taxing the use of packaging materials such as glass and paper
products, to establish tradable pennit programs are evident of the principle.
In other jurisdictions, one way to adequately implement the polluter pays principle is the
introduction of assurance bond (money put up by the polluter to insure against a worst

15
environmental impact). The bond would be recovered only if after sufficient time, it had been
demonstrated that the teclmology process or product in question had been deemed safe as was
reasonably accepted alternative, if damage occurred, the bond would be used for environmental
restoration and to pay damage. It should also be noted that, in matters to do with environmental
conservation individuals, and public interest groups look to the law and the comts to help prevent
pollution, environmental damage or development of land. In Ismail Serugo Vs Attomey
General61 the court was emphatic that the right to present a constitutional petition was vested
not
only in the person who suffers the injury but also in any other person.
Bylaws also play an important role as far as pollution control is concerned. Introduction of fines
by city court for littering the city is a good example. Under the fisheries Act62, the Act provides
for the protection of fish by regulating the size of the nets63, prohibiting fishing methods, and
makes provisions for conservation through the prohibition of fishing immature fish. 64 Recently
the Uganda revenue Authority passed a policy on the impmi of motor vehicles whose life span
exceeds seven years from the date of manufacture to pay more duty in addition to the statutory
duty.
Application of the Polluter-Pays Principle
In matters of accidental pollution risks, the Polluter-Pays Principle implies that the operator of a
hazardous installation should bear the cost of reasonable measures to prevent and control
accidental pollution from that installation which are introduced by public authorities in Member
countries in conformity with domestic law prior to the occuiTence of an accident in order to
protect human health or the environment.
Domestic law which provides that the cost of reasonable measures to control accidental pollution
after an accident should be collected as expeditiously as possible from the legal or natural person
who is at the origin of the accident, is consistent with the Polluter-Pays Principle.
In most instances and notwithstanding issues conceming the origin of the accident, the cost of
such reasonable measures taken by the authorities is initially borne by the operator for
administrative convenience or for other reasons. When a third party is liable for the accident, that
party reimburses to the operator the cost of reasonable measures to control accidental pollution
taken after an accident.

16
If the accidental pollution is caused solely by an event for which the operator clearly cam1ot be
considered liable under national law, such as a serious natural disaster that the operator cmmot
reasonably have foreseen, it is consistent with the Polluter-Pays Principle that public authorities
do not charge the cost of control measures to the operator.
Measures to prevent and control accidental pollution are those taken to prevent accidents in
specific installations and to limit their consequences for human health or the environment. They
ca11 include, in particular, measures aimed at improving the safety of hazardous installations
and
accident preparedness, developing emergency pla11s, acting promptly following an accident in
order to protect human health and the enviromnent, carrying out clean-up operations a11d
minimizing without undue delay the ecological effects of accidental pollution. They do not
include humanitaria11 measures or other measures which are strictly in the nature of public
services a11d which cmmot be reimbursed to the public authorities under applicable law, nor
measures to compensate victims for the economic consequences of an accident.
Public authorities of Member countries that "have responsibilities in the implementation of
policies for prevention of, and response to, accidents involving hazardous substances"[4], may
take specific measures to prevent accidents occuning at hazardous installations a11d to control
accidental pollution. Although the cost entailed is as a general mle met by the general budget,
public authorities may, with a view to achieving a more economically efficient resource
allocation, introduce specific fees or taxes payable by certain installations on account of their
hazardous nature (e.g. licensing fees), the proceeds of which are to be allocated to accidental
pollution prevention and contr·ol.
One specific application of the Polluter-Pays Principle consists in adjusting these fees or taxes, in
conformity with domestic law, to cover more fully the cost of certain exceptional measures to
prevent and control accidental pollution in specific hazardous installations which are taken by
public authorities to protect human health a11d the enviromnent (e.g. special licensing
procedures,
execution of detailed inspections, drawing up of installation-specific emergency plans or
building up special means of response for the public authorities to be used in connection with a
hazardous installation), provided such measures are reasonable and directly connected with

17
accident prevention or with the control of accidental pollution released by the hazardous
installation. Lack of laws or regulations on relevant fees or taxes should not, however, prevent
public authorities from meeting their responsibilities in connection with accidents involving
hazardous substances.
A further specific application of the Polluter-Pays Principle consists in charging, in conformity
with domestic law, the cost of reasonable pollution control measures decided by the authorities
following an accident to the operator of the hazardous installation from which pollution is
released. Such measures taken without undue delay by the operator or, in case of need, by the
authorities would aim at promptly avoiding the spreading of environmental damage and would
concern limiting the release of hazardous substances (e.g., by ceasing emissions at the plant, by
erecting floating barriers on a river), the pollution as such (e.g., by cleaning or decontamination),
or its ecological effects (e.g., by rehabilitating the polluted environment).
The extent to which prevention and control measures can be considered reasonable will depend
on the circumstances under which they are implemented, the nature and extent of the measures,
the threats and hazards existing when the decision is taken, the laws and regulations in force, and
the interests which must be protected. Prior consultation between operators and public authorities
should contribute to the choice of measures which are reasonable, economically efficient, and
provide adequate protection of human health and the environment.
The pooling among operators of certain financial risks connected with accidents, for instance by
means of insurance or within a special compensation or pollution control fund, is consistent with
the Polluter-Pays Principle.
Exceptions
Exceptions to the Polluter-Pays Principle could be made under special circumstances such as the
need for the rapid implementation of stringent measures for accident prevention, provided this
does not lead to significant distortions in international trade and investment. In particular, any aid
to be granted to operators for prevention or control of accidental pollution should be limited and
comply with the conditions set out previously. In the case of existing hazardous installations,
compensatory payments or measures for changes in zoning decisions in the framework of the
local land use plan might be envisaged with a view to facilitating the relocation of these
installations so as to lessen the risks for the exposed population.

18
Likewise, exceptions to the above Guiding Principles could be made in the event of accidental
pollution if strict and prompt implementation of the Polluter-Pays Principle would lead to severe
socio-economic consequences.
The allocation to the person at the origin of the accident or the operator, as the case may be, of
the cost of reasonable measures taken by public authorities to control accidental pollution does
not affect the possibility under domestic law of requiring the same person to pay other costs
connected with the public authorities' response to an accident (e.g., the supply of potable water)
or with the occurrence of the accident. In addition, public authorities may, as appropriate, seek
compensation from the party liable for the accident for costs incmTed by them as a result of the
accident when such costs have not yet been paid to the authorities.
2.6 Effectiveness of the 'polluter pays' principle/conclusion
Between 1995 to present, I must admit that the Government made attempts to implement several
measures in order to conserve the environment, despite legislations and policies in place, the
environmental pollution is at its climax today. The introduction of statutory fees and criminal
sanction are of no consequences, as it does not restore the environment to its original position.
Although, the "polluter pays" principles are evidenced in a number of legislations, its application
in terms of conserving the environment is not as expected. The public have concerns over
pollution emitting factories and industries being sited in close proximity to residential areas
because of the possible risks to human health. There are also health fears regarding radiation
from power lines and transmission station. Also NEMA as the lead agency has no capacity to
detect the level of pollution and therefore ending up granting permits on a wrong assumption.
2. 7 Principle of Common but Differentiated Responsibilities
The influence of international development law and the New International Economic Order
principles of the 1970s and 1980s advocating differential treatment of developing countries in
economic matters, led to the advent of the principle of common but differentiated responsibilities
in international environmental law in the late 1980s and early 1990s. The principle was first
applied avant la lettre in an MEA in the late 1980s, namely in the Montreal Protocol's provisions
granting differential treatment to development colmtry parties with respect to the phase-out of
ozone-depleting substances.65 It was later formally recognized in general terms in Principle 7 of
the Rio.

19
2.8 Declaration which states
In view of the different contributions to global environmental degradation, States have common
but differentiated responsibilities. The developed countries acknowledge the responsibility that
they bear in the international pursuit of sustainable development in view of the pressures their
societies place on the global environment and of the technologies and financial resources they
command66.
Since the Rio Declaration, the principle has been enshrined in a number of universal MEAs. The
principle of common but differentiated responsibilities is a two-pronged concept. It allocates
responsibly differently between countries and at the same time provides for a universal duty of
co-operation common to all states. Thus its substantive content is based on the twin principles of
pa1inership and of differential treatment. There is an economic as well as a temporal dimension
to the principle, with reference, respectively, to the different economic capacities of developed
and developing states and to their different historical and current contributions to the causes of
environmental degradation. States should be held accountable in different measure according to
their respective contributions to the creation of global environmental problems and to their
respective financial a11d technological capabilities to address those problems. 67
2.9 Participatory Principle
The increasing aJ.iiculation of procedural environmental rights at the national and international
level has gradually led to the emergence of what the author would refer to as the Participatory
principle Access to information public paJ.iicipation and access to justice have long been
recognized in many national legal systems. Moreover, such participatory rights have also been
recognized in international soft law instmments such as the World Charter for Nature,68 the Rio
Declaration69 and the Malmo Ministerial Declaration.70 The classic statement of the
participatory
principle at the universal level is to be found in Principle 1 0 of the Rio Declaration. An
increasing number of hard law instmments of a regional nature also contain provisions based on
this principle.
The first was the 1985 ASEAN Agreement on the Conservation of Nature and Natural
Resources, which unfortunately has not entered into force twenty years after its adoption and

20
signing. The most well-known instmment implementing the participatory principle is a
panEuropean MEA, the 1998 Aarhus Convention on Access to Information, Public Participation
in
Decision-Making and Access to Justice in Environmental Matters71 . The most recent is the
African Union's 2003 African Convention on the Conservation of Nature and Natural Resources.
The participatory principle essentially calls for enviromnental information to be made public and
disseminated as widely as possible, for public participation to be guaranteed in decision-making
projects, plans and programmes with significant environmental implications, and for access to
justice to be granted to the public in environmental matters.
CHAPTER THREE
GENERAL PRINCIPLES OF ENVIRONMENTAL LAW INCLUDING ACCESS TO
JUSTICE, INFORMATION, AND PUBLIC PARTICIPATION ON POLLUTER PAYS
3.0 Introduction
Equally governments have developed these principles in treaties, protocols, and national statutes
while intemational organizations, both intergovemmental and nongovernmental, including the
scientific community, have promoted dialogue in these matters in a variety of tasks in respective
mandates. Such include in fmmulation of their own programmes, and in adoption of decisions in
soft law instruments such action plans, principles, guidelines, declarations and resolutions. Some
instruments are referred to as charter, for example the World Charter for Nature adopted by the
United Nations General Assembly72 or covenant such as the one developed by the IUCN on
sustainable development. In deed since the 1972 Stockholm human environment conference73
landmark developments have taken place in environmental law and policy at global, regional and
national levels.
A full discussion of the topic would necessarily embrace international, regional and national
levels. Of course such a discussion would be rather vast. Accordingly only general remarks and
observations would be made at the global level with deliberate bias at regional level to Africa
and close home to the three East African States.
S. 2(k)74 is to the effect that the polluter of the environment is to bear costs for his actions
further
a license may be denied by the granting authority if the polluter is unable to compensate the

21
victims of such pollution and clean up the environment in accordance with the polluter pays
Principle.
Sources and Approaches
The title depicts two broad themes nam~ly :-
The basis, premise and root of environmental law. At national law one would look at nuisance,
negligence and the development of tort law and the impact of the Donald Kaniaru. Mr. Donald
Kaniaru is an advocate, Kaniaru & Kaniaru Advocates and Special Adviser UNEP. Paper
presented at Judicial Symposium on Environmental law at Imperial Resort Beach Hotel Entebbe,
Uganda. 11th -13th September 2005.
Common law, and statutes97. At international law one would look at the off-shoot of sources of
law as articulated in article 38 (1) ofthe ICJ Statute, below.
General principles. Since the examples given by the organizers of such principles derive from the
Stockholm and Rio declarations of June 1972 and 1992 76 of twenty six principles and twenty
seven principles respectively, it is clearly intended that focus be based on these complementary
set of principles.
Needless to say general principles are not only contained in the two declarations mentioned. A
lot of soft law instruments have been agreed in forms of the charter, covenant, guidelines and
principles which we cannot address in the time available. Suffice it to say that these have
influenced the development of the resulting environmental law and policy. 77
It should be noted that environmental law is pan of public law and at international level if one
wishes to look at the sources of international law, it is appropriate to refer to the UN Charter
particularly article 38 (1) of the Statute of the International Court of Justice. The four primary
sources are:-
a) International conventions whether general or particular.
b) International custom as evidence of general practice accepted as law.
the general principles of law.
d) Judicial decisions and the teachings of the most highly qualified publicists of the various
nations.
These sources underline the development of international environmental law as part of public
law. Incidentally the UN charter does not explicitly address the environment.

22
However, it does focus on human rights in the articles under the Economic and Social Council
(ECOSOC), whose subsidiary bodies like the Commission on Human Rights have done splendid
work on the subject over the years. Action on human rights started early. The universal
declaration on human rights was developed and adopted by the United Nations General
Assembly in 1948 and subsequently inspired numerous global human rights conventions as well
national constitutional provisions on bill of rights making international human rights law a
leading component of public law. This is not the only aspect that ECOSOC and the United
Nations General Assembly have spearheaded in elaborating specific aspects of the sources of
law.
In 194 7 the General Assembly established the International Law Commission (ILC) with the
express mandate to promote the codification and progressive development of internationallaw78•
Notable in the area of the environment was its seminal draft articles tabled at the first UN
Conference on the Law of the Sea held in Geneva in 1958 in which four conventions on
territorial sea and the contiguous zone, on the high seas, on the high Seas, on fisheries and living
resources and the continental shelf were adopted. The commission was and is seized with
environmental topics79 but clearly the importance, urgency and interest of states does from time
to time dictate that they take charge of negotiations of key environmental issues in and under the
General Assembly or in UN Programmes so directed, or in the context of a particular specialized
agency of the United Nations.
In the decades of the sixties and thereafter, for example, the process of the third law of the sea
conference was taken over by the General Assembly. In that period the United Nations
conference on the law of the sea concluded the Convention on the Law of the Sea at Montego
Bay, Jamaica in 1982 after over a decade of complex negotiations in the most important global
convention as a constitution of the oceans law. It took another twelve years for the convention to
enter into force on 16 November 1994.
More Conventions were to follow this trend with the General Assembly also taking up the
process, among others, of the United Nations Framework Convention on Climate Change, 1992
and United Nations Convention on Desertification Control 1994. Also worth mentioning in
passing is the General Assembly negotiations on important declarations such as on sovereignty
over natural resources 1962 and 1972 for developing countries and the declaration on the new

23
international economic order, among others.
In parallel to the above general developments other bodies were established both within the
United Nations generally or outside the United Nations framework but cooperating with the
United Nations. Of the former are UN programmes and offices for exan1ple:
UNEP, regional economic commissions and specialized agencies: all destined to play a crucial
role in environmental matters. Such specialized agencies include F AO, IMO, UNESCO, WHO,
ILO, the World Banlc Outside the United Nations regional organizations also emerged, for
example, the Organisation of African Unity currently African Union, European Union, Council
of Europe and others. Nongovernmental organizations dealing with specific issues also emerged
e.g. the IUCN established in 1948 to deal with conservation of natural resources issues. Others
are specialized institutions of a scientific nature such as the international council of scientific
unions (ICSU).
All these bodies and others were and still are players in international environmental law
evolution. In Marine Pollution and Shipping matters, IMO concluded the earliest instrument on
marine pollution: the convention of 1954, later building up several such instrumen in
subsequent decades. Before the 1960s and into the 70s such activities were carried out on an ad
hoc basis. Vi1iually no consultations among all the interested parties, both at national and
international levels, took place. The initiation of dialogue on Oceans by Malta in 196780 and on
the degradation of the human environment by Sweden in 196881 and the subsequent action on
the
two issues prompted the UN system and governments to work closely together on such issues of
considerable complexity. Two international processes on these matters were set in motion: on the
law of the Sea negotiations for over one decade, and on the human environment, Stockholm,
1972 agreeing Plan of Action, 109 recommendations, the Declaration of Principles, and
institutional and financial arrangements that form the basis ofUNEP.82
The emergence of practice of states addressing issues together and acting consistently in the field
of the environment emerged and is actively alive today. For example at the start of the
preparation of the Stockholm process there were a handful of states with clear policy and law in
environmental matters. These were Sweden, the United States of America and Japan. After
Stockholm 1972 the situation dran1atically changed and environmental ministries, commissions,

24
councils have been established by over 150 states. National environmental laws have been
developed by practically all states and internal consultation and cooperation are in effect
generally even though they are not without difficulties and challenges.83
As stated at the opening environmental discussions on policy and law at all levels is a given in
most universities and scientific bodies. Environmental law has become an important discipline of
law, and generally and widely accepted as a mover of environmental law development and
implementation. Thus several instruments are science-driven, e.g. the Ozone and Climate
treaties. As also stated during the opening session, the judiciary is fully embraced as this national
symposium, which is one of several held in Uganda, demonstrates.
3.2 General Principles
The Stockholm and Rio Declarations have provided the engine of environmental law
development at global, regional and national levels. The concepts and principles of sustainable
development wrap up several principles, in fact a third of them into the totality of the concept of
sustainable development. 84 The Brundtland commission of 1987 publication, Our Common
Future, 85 popularized the principle, which it defined as "development that meets the needs of
the
present generation without compromising the ability of future generations to meet their needs."
This is stated verbatim in Cap 153, The National Environment Act, 1995 of Uganda. The same is
the case in Kenya's Environmental Management and Coordination Act (EMCA) number 8 of
December 1999 and Tanzanian Mainland Act the Enviromnental Management of November
2004 both of which add to that definition by maintaining the carrying capacity of the ecosystems.
In these laws the topics of tl1is discussion are embraced in sustainable development namely the
Principle of Public participation, The Polluter Pays Principle, the Precautionary Principle and
that of Intergenerational Equity. These and other Rio principles are expressly recognized in
national laws of many countries including the East African one. The broad sustainable
development principle naturally has possibility of development by national courts because its
precise content and it's what I may call, constructive vagueness, would allow judges to give local
application taking into account the prevailing circumstances and needs in a given country. A lot
is written on these principles and of more interest is attention given or to be given to them in
their implementation and enforcement.

25
3.3 Rio Principle 10
This principle embraces Access to Environmental Justice, Information, Public Participation. This
is one of the most intensely discussed and legislated principles at all levels. The three pillars it
underlines are access to environmental justice, access to information and access to public
participation in decision making. Its core aspects are environmental awareness, enhancement and
empowerment. Everyone must be able to enjoy his or her clean environment. They must be able
to protect, unhindered their and others interests, in courts, tribunals and judicial processes. The
pillars are briefly touched on below.
Access to justice. This means that issues of locus standi should not stand in their way to Courts
and Tribunals dealing with environmental issues. Traditionally the common law approach
required that to pursue a matter in Court, a plaintiff had to show he/she had a legal interest in the
matter or had suffered personal injury, otherwise one was shut out in Courts. This rigidity was
exercised by the Kenya High Court again and again; for example in the Wangari Maathai cases.
Nigerian Courts followed similar approaches even as the UK relaxed the application of the same
and as the Indian Supreme Court quit such rigidity. In this respect the laws ofUganda,86 Kenya
and Tanzania have opened the way for all.
Environment is not static: it is interdependent and no wall can be built to deter links between
environment on one side and the other. For the courts the issue of costs of filing a suit, the cost of
counsel to assist, the fear of being saddled with the costs of the suit if one loses are all integral to
the access to justice aspect. If these are prohibitive, access would be illusory. Happily most
national statutes are providing for waivers in these respects save for clearly frivolous
interventions and abuse. So far there have been no problems in the East African countries.87
Advocate K. Kakuru points out that taken together, The Constitution of Uganda, article 50 and
the National Environment Act, Cap 153 sections 4(4); 68, 72 also relax the locus standi rule, and
the Courts should apply the law the straight forward way allowed in Kenyan and Tanzanian Acts.
Access to information is of course, crucial. Information is said to be power. Consequently its
denial to whoever may be interested or the public means denial of discussion and contribution to
a pertinent issue and its resolution. It is of paramount significance that environmental
information be broadly available on a timely basis and the culture of secrecy built over time by
public authorities must give way save in limited and clearly defined areas such as security or

26
bona fide personal or proprietary information.
Public Participation in decision making. This is, of course, again critical. Those decisions that
affect the public must also be subject to scrutiny by the public. This is an aspect in the
environmental impact process that is subject to contest when information is not broadly shared or
issues raised on a timely basis to enable whoever may be interested to comment, question and
intervene. At international level this principle has found expression in legally binding
instruments while at national level it is a principle to be found in recent national constitutions
and statutes. Uganda has this in its law and Kenya has it both in its draft constitution and its
EMCA. The same is true in most (about 40) African cotmtries laws.
At international level mention could be made of the Aarhus Convention on Access to
Information, Public Participation in Decision-making and Access to Justice in Environment
Matters, concluded in June 199888 under the auspices of the UN Economic Commission for
Europe. This convention, though regional, is open for accession by states outside the jurisdiction
of the UNECE. In fact I understand that Uganda and Mexico have decided to follow the
accession process permitted by article 19 (3).
3.4 Principles 15 and 16
The Precautionary Principle (PP 15) and The Polluter Pays Principle (PPP 16) respectively state:
In order to protect the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason for postponing cost-effective measures to
prevent environmental degradation (PP 15).
National authorities should endeavour to promote the internalization of environmental costs and
the use of economic instruments, taking into account the approach that the polluter should, in
principle, bear cost of pollution, with due regard to the public interest and without distorting
international trade and investment (PPP 16). These two principles are integral part of national
laws of Uganda, Kenya and Tanzania per their statutes earlier refened to. 89They are applied in
other developing countries quite prominently. The Indian Supreme CoUlt has applied them in its
numerous decisions.
For example in Vellore Citizens Welfare Forum90 vs. Union ofindia Supreme Court in the 1996
case where the Vellore citizens petitioned it to stop tanneries in Tamil Nadu from discharging

27
untreated effluent into agricultural fields, open lands and wate1ways. The Supreme Colllt he
that the sustainable development and in particular the Polluter Pays Principle and the
Precautionary Principle have become a part of customary international law. It ordered the central
government to establish an authority to deal with the situation created by the tmmeries and other
polluting industries in Tamil Nadu "This authority shall implement the Precautionary Principle
and the Polluter Pays Principle", the Court ordered.
It should also be noted that South Asian Courts have followed the example and lead of the
Supreme Court of India. [Bangladesh, Pakistan, Sri Lanka, Nepal]. The application of the
principles at national will remain topical in establishing applicability in Courts. In PP 15, full
scientific certainty may be farfetched in developing countries, and the shift of the burden of
proof from plaintiff to respondents will be a matter to argue. The same is tme on remedies, levels
of compensation and restoration in PPP 16. Of the two principles the Precautionary one is the
more controversial. The US in particular is apprehensive in its use and prefers approach to
principle. This is also reflected in the use of principle and approach in the title and body of the
principle. The Polluter Pays Principle is much older in Europe having been developed by the
OECD countries in the 1970s. This principle has been in reservedly embraced in developing
countries, and certainly in Africa.
3.5 Principle 17
Environmental Impact Assessment (EIA) Process: Principle 17 states that "[EIA ], as a national
instrument, shall be undertaken for proposed activities that are likely to have a significant impact
on the environment and are subject to a decision of a competent national authority." Again the
statutes from the three East African countries contain the tluust of this principle followed by
regulations that underline the steps to be taken in the process whose examination by an expert or
experts would determine whether or not a Programme, activity or a project would have a11y
adverse impact on environment. Both Uganda and Kenya have EIA regulations in place and a
proponent of a project of a given magnitude has to fulfill the requirements per Act and
regulations. The experts are registered by the pertinent authorities. Additionally Uganda has A
Guide to the Environmental Impact Assessment Process in Uganda.91The steps include:
o Screening to determine whether a certain project should be subject to EIA;
• Scoping to decide which impacts should be taken into account by EIA;

28
• Impact analysis to evaluate the type of likely envir01m1ental impacts;
• Mitigation and impact management to develop measures to avoid, reduce or compensate
for negative environmental effects;
• Reporting to catalogue and track the results of EIA for decision makers and other
interested parties, including the public;
• Review of EIA quality to examine whether the EIA report includes all the information
required by decision makers and the public;
• Decision making to approve or reject project proposals and, if needed, to set the terms
and conditions under which a certain project can proceed; and,
• Implementation and follow-up to ascertain whether the project is proceeding as planned,
monitor the effects of the project, and take actions to mitigate problems that arise during
the course of the project.92
In the statutes of the East African countries, the environmental authorities established under
respective Acts are charged with responsibility on deciding on the EIAs to be and undertaken as
audits and monitoring. The decisions taken are subject to appeals in case of Uganda
administratively as provided and supervision of the High Court.93 For a full discussion of the
EIA law and procedures in Uganda, attention is drawn to interested readers to a comprehensive
and erudite paper titled The Environmental Impact Assessment by Hon. Rubby Aweri Opio,
Judge of the High Court, Uganda.94 In the case ofKenya95 and Tanzania96 Mainland appeals a
The looming problem is whether the decision making process is good or fast enough for
investors with the claim that decisions are taking too long. This in itself is already raising
political overtones. In Kenya the Minister of Planning is on record expressing dissatisfaction
with the performance of National Environment Management Authority (NEMA). The point is
that people including investors have come from a background where there was no intervention of
any kind whatsoever by the authorities. Consequently the changes in the law, welcome as they
are, are construed as constraints.
EIA is essentially a national procedural tool fairly widely used in Africa and beyond. However,
UNEP in 1987 developed environmental impact assessment guidelines which UNECE
subsequently developed into the Convention on Environmental Impact Assessment in
Trans boundary Context popularly known as "Espoo Convention"97 in force since 1997. This

29
instrument is currently backed up by a protocol on strategic environmental assessment of 2003
which, though open to all UN member states, is yet to come into force.
Nearer home in East Africa, environmental impact assessment is known not only in national
statutes as earlier stated but in the treaty for the establishment of the East African Community98
in its chapter 19 titled Cooperation in Environment and Natural Resources Management article
111, paragraph 1 (d) which provides:-
"The Partner States recognize that development activities may have negative impacts on the
environment leading to the degradation of the environment and depletion of natural resources
and that a clean and healthy environment is a prerequisite for sustainable development.
(d) "Shall provide prior and timely notification and relevant information to each other on
natural and human activities that may or are likely to have significant trans-boundary
environmental impacts and shall consult with each other at an early stage ".
It should be noted also that article 112 on management of the environment paragraph 2 m
acknowledging paragraph 1 covering five agreements by the partner states to develop a common
environmental policy, to develop special environmental strategies, to take measures to control
trans boundary air, water and land pollution, to take necessary disaster preparedness,
management
protection and mitigation measures and to integrate environmental management and conservation
measures in all development activities provides that partner states undertake to develop special
environment management strategies to manage fragile ecosystems, tenestrial and marine
resources, noxious emissions and toxic and hazardous chemicals. Thus, EIA is a fundamental
aspect in the facilitation of environmental and sustainable development in the region. The treaty
also acknowledges the EIA in a Memorandum of Understanding (MoU) between the three
countries for cooperation on environment prepared under the auspices of PADELIA and two
protocols for Environment and Natural Resources Management and for Sustainable Development
of Lake Victoria Basin.
3.6 Inter & Intra-generational Equity
Several Rio principles, notably I, 3 as well as several treaties and declarations refer to the
responsibility to protect and improve the environment for present and future generations.
Principle I; the natural resources of the earth must be safeguarded for the benefit of the present

30
and future generations. The thrust of Principles 3 and 5 as well as several other international
efforts springing from 1987 Brundtland report, Our Common Future, which balanced the
interests of present and future generations in the definition already stated. Of course the concern
of this principle is not only inter-but intra-generational equity as well. It is the core of sustainable
development.
The best and widely known national judgment on this matter is the Oposa99 and Others vs
Factoran and Another issued by the entire Supreme Court of the Philippines. The Petitioners, a
group of minors brought the action on their own behalf and on behalf of generations unborn
through their parents together with Philippine Ecological Network Incorporated. They protested
the imminent total destruction of the country's forest resources to the detriment of their interests.
The Supreme Court recognized that the case raised the right of the people of the Philippines to a
balanced ecology and the concept of the intergenerational responsibility and inter-generational
justice. The Supreme Court upheld the action and in part stated:-
"The Petitioners had the right to sue on behalf of succeeding generations because eve1y
generation has a responsibility to the next to preserve the rhythm and harmony of nature for the
full enjoyment of a balanced and healthful ecology. "
Although this right was incorporated in article 16 of the country's Constitution, the Supreme
Court observed:
"As a matter of fact, these basic rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers that unless the rights to
balanced and healthful ecology and to health are mandated as state policies by the Constitution
itself, thereby highlighting their continuing importance and imposing upon the State a solemn
obligation to preserve the first and protect and advance the second, the day would not be too far
when all else would be lost not only for the present generation, but also for those to come,
generations which stand to inherit nothing but parched earth incapable of sustaining life. "
The United Nations Environment Programme, in updating a 1997 Training Manual will shmily
provide a new Manual 100 embracing generally and specifically the above principles as well as
an
entire discussion on global, regional and national themes covering no less than 26 chapters of

31
environmental current concems. The principles discussed or raised above are covered as follows:
Doctrine of Public Trust101
This I will touch briefly. It has its beginnings in Roman Law but obviously in other traditional
and customary laws where no benefit of writing is in evidence, for example, amongst our African
societies. Of course the common law knows the doctrine and the UK, US evidence this in several
judicial decisions whose discussions of the doctrine are in more limited areas than, I believe, our
countries would endorse. The Indian Supreme Court has discussed this doctrine in the late 1990s
and I recall here the case ofM. C. Mehta vs. Kamal Nath102 and Others of 1997. In this matter
the Court took notice of an article appearing in a newspaper spotting the family of Kamal N ath,
fonner Environment Minister in India where some motel had encroached on additional area of
land adjoining the authorized place and used earih movers and bulldozers to turn the cause of the
river to create a new channel a11d divert the river's flow to prevent future floods destroying the
motel. The Supreme Court addressed the issue of Public Trust Doctrine under which the
government is the trustee of all natural resources which are by nature mea11t for public use and
enjoyment.
The Comi reviewed public trust cases from the United States and noted that: "under English
common law this doctrine extended only to traditional uses such as navigation, commerce and
fishing but the doctrine is now being extended to all ecologically impmiant lands, including
freshwater, wetlands and riparian forests. The Court relied on these cases to rule that the
government committed patent breach of public tmst by leasing this ecologically fragile land to
Span Motels when it was purely for commercial use."
101 Handbook on Environmental Law in Uganda 2nd Edition 2005 ... Section 3.3 and 3.3.1,
pages 24-28.
102 UNEP National Decisions on Compendium of Judicial Decisions on Matters Related to
Environment Vol. I pages 259-274
The principle is inherent in the management of public and community goods through
govemments and local authorities. In many developing cotmtries, these inherent interventions are
expressly provided for in national constitutions, 103 statutes104 and in customary practices.
3.8 Environmental Treaties and Players
In two recent interventions two professors have addressed this subject. In the judicial colloquium

32
for East African countr ies and the East African Comi of Justice based at Arusha, held in
Mombasa on 2- 4 June, facilitated by Prof. Charles Okidi of the University of Nairobi, he
presented a paper on "the concept, structure and function of environmental law" 105 which may
have already been shared with some of you by the many judges from Uganda who took part in
the symposium. In the event it was not shared, I leave a copy with the organizers to avail to the
participants of the meeting. In part VI title "Treaty Law on the Environment" Olddi underlines a
number of global and regional treaties of relevance to the Africa region. These are pmi of the
compilation of the text of treaties that UNEP has compiled over the years in its treaty series 106
volumes 1 and 2 as well as its recent compilation titles "Selected Text of Legal Instruments in
International Law". In the paper Prof. Okidi reviews the evolution of environmental law at both
national and international arenas.
The other presentation titled "An Introduction to the Resources Principles and Regimes of
International Environmental Law" by Prof. Marc Pallemaerts of University of Libre de
Bruxelles and Vrije University Brussel, was done on 24th August 2004107 . In that note under
treaties the Professor gives an interesting analysis of multilateral environmental treaties or
agreements that fom1 most significant development in environmental law. In this respect this
article and that of Professor Okidi are complementary. He sums up the different faces and
outputs in similar fashion to Prof. Okidi but giving precise nmnbers of treaties concluded in the
different phases. Prior to 1960 some 42 MEAs mainly in the management of the natural
resources area. After the Stockholm Conference, in the 70s he cites another adoption of 75 new
MEAs. In the 1980s, another 40 additional MEAs. In the 1990s, another 75 MEAs. Thus
summed up the number of environmental treaties is conservative.
Different authors give the number at 500; some even as many between 900 and 1000 global and
regional treaties. The differences come in as a result of what each author characterizes as
environment and sustainable development. I will also leave the copy of each of the papers to
share because these two papers are illuminating. There are other interesting materials to read
from the same meeting in August 2004108 that is shared with organizers for the participants.
The recent publication titled "Making Law Work" edited by Durwood Zaelke, Donald Kaniaru
and Eva K1·uzikova109 is well worth reading because its focus on implementation is responsive
to the 2002 World Summit for Sustainable Development110 focus on Implementation as well as

33
UNEP's Montevideo III of the current ten year period of review and development of
environmental law which gives priority to Implementation and Enforcement as well as Capacity
Building. Again I will avail the two volumes to the organizers for their Library.
With respect to treaties, I mentioned at the outset that many players and partners have responded
to this subject more comprehensively and cooperatively in initial stages of the 1950s and 1960s.
The players and partners in the process have been many but UNEP has played its major part in
over 40 global and regional agreements since its establishment following the Stockholm
Conference. Even for the conventions that others played a lead role UNEP was a partner in many
cases at the global and regionallevels. 111 That was certainly the case in the negotiations of
those
conventions like the Climate Change 1992 and the Desertification Convention 1994 where it
provided personnel and scientific support in the case of the fom1er and scientific information and
support to developing countries in negotiations in the case of the latter. The same is true in
several regional agreements for Africa and Asia and Europe. From 1981 UNEP also established
a ten year programme starting with the Montevideo I for the 80s, II for the 90s and III for the
current decade. 112 These were and are geared to systematic, rather than the ad hoc intervention
that prevailed before, in the development of the international environmental law and its
Implementation at national level and in Capacity Building programmes to developing countries
and countries whose economies are in transition.
3.9 Concluding Remarks
Broadly the above highlights, albeit without extensive discussion, the concerns and theme that
the organizers asked that I share during this symposium. Before concluding and opening the
floor for discussion it may be necessary to underline a few points which I do below:
Focus on role of the judiciary already was referred to during the opening and no doubt Uganda is
aware of the programme that UNEP is carrying out globally, regionally and at national level for
judiciaries and legal fraternity.
The three East African countries, individually and together, have been significant players in the
field of environment in the past three decades. I have witnessed Uganda's active participation in
this matter at the UN General Assembly in the law of the Sea negotiations during the 3rd Law of
the Sea Conference, in the UNEP Governing Council and its Committee of Pennanent

34
Representatives, at its national or East African Environmental activities held in Uganda from
1976 when the first national conference was held and subsequently as mentioned in
administering a project that gave initial capacity those years to Ugm1da and in the PADELIA
which has held no less than four meetings in Uganda. From the project's inception I was and still
an1 associated with it as its chairman of the steering committee to date.
I have mentioned that in East Africa, Uganda took the lead in the enactment of its chapter !53 in
1995 and it may be contemplating a111ending it to strengthen it or to bring it in line with the
more
cunent developments during the one decade its Act has been in force and to attune the law to the
needs and evolving circumstances of Uganda. It should be noted that any adjustment in the law
should be to strengthen, rather than weaken it; this approach should not be negotiable. Elsewhere
have mentioned the Kenyan Act and the Tanzanian Mainland Act which is the youngest having
been adopted in late 2004 and come into force in Febmary 2005.
Making such Acts operational does take time, and the Tanzanian case is no exception. The three
laws have significant approaches to the development of environmental jurispmdence. Let me
underline or comment on this. Ugandan Act calls for challenges to decisions taken by the
institutions created to be appealed administratively and for the High Court to supervise such. In
deed already a number of cases have been before the High Court. I am not aware whether if a
party is fmiher dissatisfied can, under normal procedures, appeal to the higher Courts, and have
not seen a case form either the Comi of Appeal or the Supreme Court 113 • In this respect
Uganda
has taken a different path and it is not surprising that a comment was made that Uganda revisits
this aspect to approximate what is happening in the other two countries or taking into account
what is happening elsewhere in the commonwealth. On the other hand, Ugandan superior Courts
may interpret the current law in such a way that they do not feel inhibited in the development of
environmental law. Such an approach would be great. The route taken by the two countries is
briefly mentioned hereunder.
The situation is Kenya's EMCA came into effect in January 2000. The organs 114 established
under the Act did not, however, take off until 2002. Nevertheless, there have been discussions of
making amendments to the Act to clarify some points and to streamline the Act. The current

35
draft Constitution envisages the establishment of an environmental commission with defined
responsibilities 115 It also envisages the enactment of an Act of parliament to implement the
different aspects. If the new Constitution is ratified through the referendum scheduled for
November 21 any amendment to the Environment Coordination Act could usefully implement
what is anticipated. Be that as it may, EMCA establishes a National Environment Tribunal
(NET), among other institutions, e.g. the National Environment Council (NBC); the Public
Complaints Committee (PCC), and NEMA, to hear appeals and to be able to give opinions in
matters referred to it. The tribunal is chaired by a chairman nominated by the judicial service
commission and qualified to be appointed a judge of the High Court. Two other members are
senior lawyers and the other two are senior scientists. It has dealt with one appeal and is hearing
another three. Indications are that it is in business. Another Act of parliament " The Forest Act"
adopted this year and yet to be assented by the President mandates the tribunal to hear appeals
arising from the decisions of the organs established under that Act. Appeals from the tribunal go
to the High Court; one judge sitting on the matter and whose decision is final. It does not indicate
whether the appeal is on a point of law only. Consequently the appeal can be on both facts and
law. The one ruling so far made is subject to appeal. The members of the tribunal including the
chahman are gazetted for a 3 year period that may be renewed by the Minister for the time being
responsible of the Environment.
The Tanzanian appeals tribunal is different from Kenya's in the significant respect both to the
appointment of the chainnan and the handling of appeals. The chairman qualified to be a judge is
appointed by the President of the Republic. The appeals go to the High Court for final
determination by a Court constituted by three High Court judges. The administrator of the
Tribunal is a registrar named by the Chief Justice.
These features are certainly an improvement on Kenya which could find itself with an appeal
going to the High Court for final decision from the tribunal and yet a parallel appeal fi-om a
matter that may first have gone to the High Court which has unlimited jurisdiction and which
matter was not at the time rerouted to the national environment tribunal. Such a matter would, of
course, be appealable to the Court of Appeal or higher to the Supreme Court should the new
Constitution come into force. Thus, this matter needs to be clarified on the Kenyan side.
Of course Uganda does not need to only look at the two East African countries.

36
There are several developing countries with such structures in place. Nor does Kenya only need
to look at the Tanzania example. There are also developed commonwealth countries with
different structures, for example, New Zealand and Australia. In the latter the New South Wales
Land and Environment Comi is the oldest and best known and whose judges rank as the High
Court judges. Let me refer to three other developing countries. One in Africa and two in the
Caribbean. Mauritius is the case in Africa which follows the example of Kenya more or less. It
cmmot therefore be the best exa111ple for U gm1da. Then two other cases are Guyana and
Trinidad
respective Courts Appeal and other provisions are similar to those of judges of superior
courts with secure tenure, salaries and remuneration, some members full time or part time as the
case may be and so on.
Quite clearly then, the development of environmental jurisprudence in East Africa is a matter
that does deserve attention by the relevant authorities if hmmony is to be achieved at both the
national level and at the East Africa Court of Justice level in environmental matters.
These unsolicited comments have been given in the interest and spirit of further developments
and cohesive attention that the important issue of environmental jurisprudence in the context of
sustainable development should receive in it’s consistent future Growth.
CHAPTER FOUR
INTERNATIONAL ENVIRONMENTAL LAW: OVERVIEW OF INTERNATIONAL
TREATIES, CONVENTIONS AND PROTOCOLS
4.0 Introduction
This section aimed at expressing the level at which international environmental law explains the
need to preserve the environment in Uganda.
4.1 Overview on the international treats
The years since the 1972 UN Conference on the Human Enviromnent in Stockholm have
witnessed ever increasing priority given to enviromnental protection and an increasing
recognition of the need for international cooperation to this end. This cooperation has been
undertaken in a variety of contexts not the least of which is the codification of new legal
obligations in the form of an impressive array of global, regional and bilateral international
environmental agreements 117. These agreements address all forms of pollution of the marine
enviromnent, conservation of wildlife and their habitats, transboundary air pollution,

37
desetiification. Together with related international developments and the effotis of international
organizations and the NGO community, international environmental agreements prescribe basic
obligations of states. The agreements also frequently establish rulemaking procedures intended to
supplement those agreements.
At the outset, it is important to note the distinction between international law and domestic law.
This distinction has a direct bearing on enforcement issues. International law, despite the quasi
legislative nature of some international organizations and agreements, does not have the same
hierarchical structure as do national legal systems.
117 George Wamukoya. Dr. George Wamukoya is the Director, Development and External
Relations WWF, Eastern
National legal systems have legislative bodies, courts and the executive that create, define, and
enforce legal obligations. Notwithstanding the establishment and operation of the international
law has been characterized by one commentator as a "horizontal system" without enforcement
mechanisms that operate from above. Although the international system has a relatively
developed structure of institutions, there is no international police force and international bodies
do not possess ultimate sanction authority to issue and enforce decisions.
In general, international law, including agreements, is based on the voluntary acceptance of
sovereign states that recognize it to be in their interest to sacrifice some degree of sovereignty in
return for commitment from others. At the same time, comply with international legal
obligations in order to maintain good standing in the international community.
For the most part, states do comply with their international obligations. They consider the longer
term advantages of compliance to outweigh shorter term gains obtained as a result of
noncompliance in any specific instances. In many ways, these motivating factors are not
dissimilar from those of individuals responsible for complying with domestic laws at the national
level. Nonetheless, although governments are created in part to ensure adherence with the rule of
law, at the international level many facets of "government" exist only on a "good faith" or
rudimentary levels. As a general rule, international environmental agreements have not yet
evolved to the extent of having sophisticated, centralized enforcement mechanisms to ensure
strict compliance. As a result, their viability remains dependent upon the good faith efforts of
parties to comply with stated obligations with respect to both the agreements itself and decisions

38
by bodies established thereunder.
While states generally comply voluntarily with their international obligations, there is an
additional, supporting principle of international law that treaties must be observed. That principle
has been codified in the 1969 Vienna Convention on the Law of Treaties.
Article 26 of the convention, entitled "Pacta Sunt Servanda" provides that every treaty in force is
binding upon the parties to it and must be carried out by them in good faith. This principle of
customary and conventional international law underpins all the other mechanisms embodied in
international agreements concerning compliance and is the most fundamental legal basis for the
requirement that states their treaty obligations.
National legal systems have legislative bodies, courts and the executive that create, define, and
enforce legal obligations. Notwithstanding the establishment and operation of the international
law has been characterized by one commentator as a "horizontal system" without enforcement
mechanisms that operate from above. Although the international system has a relatively
developed structure of institutions, there is no international police force and international bodies
do not possess ultimate sanction authority to issue and enforce decisions.
In general, international law, including agreements, is based on the voluntary acceptance of
sovereign states that recognize it to be in their interest to sacrifice some degree of sovereignty in
return for commitment from others. At the same time, comply with international legal
obligations in order to maintain good standing in the international community.
For the most part, states do comply with their international obligations. They consider the longer
term advantages of compliance to outweigh shorter term gains obtained as a result of
noncompliance in any specific instances. In many ways, these motivating factors are not
dissimilar from those of individuals responsible for complying with domestic laws at the national
level. Nonetheless, although governments are created in part to ensure adherence with the rule of
law, at the international level many facets of "government" exist only on a "good faith" or
rudimentary levels. As a general rule, international environmental agreements have not yet
evolved to the extent of having sophisticated, centralized enforcement mechanisms to ensure
strict compliance. As a result, their viability remains dependent upon the good faith efforts of
parties to comply with stated obligations with respect to both the agreements itself and decisions
by bodies established thereunder.

39
While states generally comply voluntarily with their international obligations, there is an
additional, supporting principle of international law that treaties must be observed. That principle
has been codified in the 1969 Vienna Convention on the Law of Treaties.
Article 26 of the convention, entitled "Pacta Sunt Servanda" provides that every treaty in force is
binding upon the parties to it and must be carried out by them in good faith. This principle of
customary and conventional international law underpins all the other mechanisms embodied in
international agreements concerning compliance and is the most fundamental legal basis for the
findings subsequently published in a report.
CHAPTER FIVE
CONCLUSION AND RECOMMENDATION
5.0 Introduction
This section examined the analysis of polluter pay principle on preserving the environment in
Uganda. This included the conclusion and recommendations required to enhance understanding
of polluter pay principle. Furthermore, the polluter pay principle gives the magnitude on
preserving the environment in Uganda.
5.1 Conclusion
From the foregoing, it is clear that it is possible for the right to clean and healthy environment to
be enjoyed in Uganda. The same is protected by the Constitution and has been judicially
interpreted. There is however a need to reconceptualise the right to a clean and healthy
environment by clearly defining it and according it the correct place in the human rights
discourse.
The right to a clean and healthy environment can be equated to the right to life. This is the bold
declaration that must be made and captured in our legal framework so as to make it a reality.
When established procedures are used to collect evidence, it is often easier to defend the
scientific reliability and legal acceptability of the procedures. Witness interviews should be
recorded along with other field activities such as sampling and environmental measurements.
When assisting in the execution of a search wanant, the investigative team should ensure that the
evidence collected is authorized by that wammt. Each person collecting evidence could
ultimately be called as a witness later.
Marking, labeling, preservation (if appropriate) of exhibits should all be part of the permanent

40
record of the crime scene visit. Chain-of-custody records should include a standard form
documenting the delivery and the receipt of each exhibit. Personnel handling the exhibits are
recorded from the initial contact at the crime scene through each exhibit transfer until the
exhibits are received in the laboratory. Under chain-of-custody procedures, exhibits are to be
under the control of the investigative team at all times. The location of each exhibits from the
time of collection through the time of laboratory analysis, should be documented.
The realisation of the right to clean and healthy enviromnent for the Kenyan people calls for the
reconceptualization of the right. The existing framework on environment, including EMCA falls
short of defining what entails a clean and healthy environment. From the foregoing argument, it
is the author's assertion that the right to a clean and healthy environment can only be fully
realised through addressing all issues that adversely affect the environment. The anthropocentric
approach mostly adopted by most of the existing legal instruments creates the false impression
that the environment should only be protected for the convenience of human beings. However, a
better approach should incorporate both antln·opocentric and ecocentric ideals for better
incentives.
The realization of the right to clean and healthy environment for the Ugandan people calls for the
reconceptualization of the right. The existing framework on environment, including EMCA falls
short of defining what entails a clean and healthy environment. From the foregoing argument, it
is the author's assertion that the right to a clean and healthy environment can only be fully
realised through addressing all issues that adversely affect the environment. The anthropocentric
approach mostly adopted by most of the existing legal instruments creates the false impression
that the environment should only be protected for the convenience of human beings. However, a
better approach should incorporate both antln·opocentric and ecocentric ideals for better
incentives.
Sustainable development efforts may not bear much if the country does not move beyond laws.
There is need for educating the public on the subject, with emphasis on preventive and
conservation measures. The same should include change of attitude by the general public.
Through encouraging use of traditional knowledge in conservation and production to active and
meaningful participation in decision-making, the citizenry can hopefully appreciate the fact that
the creation of a clean and healthy environment is not a State's responsibility only but there is a

41
requirement of cooperation between the State actors and the individuals. It is to be recalled that
Article 69(2) of the Constitution provides that every person has a duty to cooperate with State
organs and other persons to protect and conserve the environment and ensure ecologically
sustainable development and use of natural resources. There is need to empower communities so
as to actualise these constitutional provisions.
5.2 Recommendation
Member countries continue to collaborate and work closely together in striving for unifonn
observance of the Polluter-Pays Principle, and therefore that as a general rule they should not
assist the polluters in bearing the costs of pollution control whether by means of subsidies, tax
advantages or other measures 118•
The granting of any such assistance for pollution control be strictly limited, and in patiicular
comply with every one of the following conditions:
a) It should be selective and restricted to those parts of the economy, such as industries
areas or plants, where severe difficulties would otherwise occur;
b) It should be limited to well-defined transitional periods, laid down in advance and
adapted to the specific socio-economic problems associated with the implementation of a
country's environmental Programme;
c) It should not create significant distortions in international trade and investment;
If a Member county, in cases of exceptional difficulty, gives assistance to new plants, the
conditions be even stricter than those applicable to existing plants and that criteria on which to
base this differentiation be developed.
In accordance with appropriate procedures to be worked out, all systems to provide assistance be
notified to Member countries through the OECD Secretariat. Wherever practicable these
notifications would occur prior to implementation of such systems.
Regardless of whether notification has taken place, consultations, as mentioned in the Guiding
Principles [C(72)128] on the implementation of such systems, will take place at the request of
any Member State.
Recommends that, in applying the Polluter-Pays Principle in connection with accidents involving
hazardous substances for instance extracted Oils from the engines, rusted metals, Member
countries take into account the "Guiding Principles Relating to Accidental Pollution.

42
Instructs the Environment Committee to review the actions taken by Member countries pursuant
to this Recommendation and to report to the Council within three years of the adoption of this
Recommendation.
The study recommends that the government should employ strong strategies to have polluter pay
principle work effectively, this is reduce on ineffectiveness of the laws that already in place in
preserving the environment especially in Central Uganda

43