ACBF On May 7TH 2021 the High Court of Uganda before Hon. Justice Ssekaana Musa issued the ruling in the matter of Cause number 239 and Cause number 255 of 2020 by WEMNET, NAPE and AFIEGO versus National Environmental Management Authority (NEMA) and Hoima Sugar Limited. The application was seeking Court intervention over procedural illegality and irregularity committed by NEMA in the process of issuing the ESIA and certificate of approval to Hoima Sugar. Unfortunately the Court dismissed the application stating that it was based on “unsubstantiated allegations to win public sympathy” and trying to mislead the court.
More in details, the Court while analyzing weather NEMA committed irregularities in the application of the Regulations governing Environmental Impact Assessments, states that the relevant stakeholders were consulted by NEMA and their opinions were taken into consideration. The stakeholders include National Forestry Authority, Uganda Wildlife Authority, 81 residents in the area of Bugoma forest (Nsozi) and even the civil society organizations themselves. Further, the Court specifies that there was no need for a public hearing in that process, because there was no controversy and no transboundary impact on the project activities. In the end, it is the view of Court that the Executive Director of NEMA had the authority to approve the ESIA to Hoima Sugar and, while exercising his legitimate power, he approved it, with or without taking into consideration other stakeholders opinions.
In his criticism of what he calls “unsubstantiated allegations” by the applicants civil society organizations, Hon. Justice Ssekaana Musa brings out clearly what he considers the “facts” that form his judgment and which, by coincidence, are copied from the statements by NEMA. First of all, that there is no controversy over the land ownership by Hoima Sugar as this matter was resolved by the Court of Masindi in 2019; the Judge considers to be a “weak argument” that the matter is still in Court for appeal. For the Court it is not a problem that Omukama of Bunyoro Kitara Kingdom and Hoima Sugar have occupied part of Bugoma Central Forest Reserve as it is clearly shown in the official maps of the gazetted reserve and that they have done so acquiring titles of dubious origin.
Secondly, that “the land hardly has any mature trees” and it only has shrubs vegetation; however it is well documented the fact that the “land” occupied by Hoima Sugar is not just a “land”, but a tropical forest of international relevance. This information can be easily verified by use of satellite images, by a site visit or simply by consulting National Forestry Authority that is the custodian of the forest reserve.
Thirdly, that it is not true that 21 square miles of forest is being cleared, but only part of it (2,400 hectares). How can the court be sure of this statement? In fact from the satellite images of the destruction done by Hoima Sugar we have the proof that the deforestation is wider than what the ESIA certificate was allowing. Court look at the destruction of 2,400 hectares of Bugoma Forest as a normal business without any implication.
While the Judge believes that there was a formal respect of the consultation process by Nema, he does not comment on the merit of its substance, as to say what all the stakeholders were actually saying and if it is true that the proposed sugar cane project was not controversial and that the ESIA could be easily be granted and not halted.
This is the biggest gap and shortcoming in the ruling: the judge does not mention the opinions of the stakeholders, but at the same time he considers legitimate and proper the procedure of acquiring the ESIA. The Court acquired in record the opinions of the stakeholders, which portray a completely different story.
This is the opinion written by National Forestry Authority in a letter to NEMA dated 20th July 2020: that “Bugoma CFR is an internationally recognized conservation area which requires key stakeholders to participate and provide inputs”, however NFA was not consulted. Therefore NFA recommended to NEMA the following: to consult the Ministry of Water and Environment, who was against the sugar project; to call for a public hearing because the impact of the project is totally not addressed in the ESIA; to advise the developer to look for an alternative land.
The opinion by Uganda Wildlife Authority is not any different. In a letter dated 21th July 2020 to NEMA, UWA writes that it “strongly discourages conversion of the natural forest into a sugar cane plantation as this would cause irreversible impact on the ecosystem and wildlife” and that “the developer should be advised to keep the forest and not to replace it”; in fact, UWA writes, “chimpanzees are attracted to sugar cane and this makes the plantation incompatible with the surroundings”. UWA also notes that “the developer did not carry out comprehensive consultations with stakeholders as it was advised to do” and the ESIA refers to the Environmental Act of 1995, but that was changed by National Environment Act 2019 which should be the current legal basis for the ESIA. In the end, “the area is under consideration for upgrade to a national park status for better protection”, therefore it should not be interfered with.
Despite all the relevant stakeholders being against the sugar plantation project, Court says that the process of consultation was fair.
At a certain point the Judge states that “the consciousness for environment protection in this country is of recent origin and were justifiably made should be encouraged”. Indeed we agree with this statement as we express our dissatisfaction that once again a Court of law is wasting an opportunity to clear the ground on the shameful matters related to the destruction of Bugoma Forest. The Court chooses on the one hand not to enter into the merit of the decision made by the Executive Director of NEMA, recognizing his mandate of “power of death and life” over the national natural resources; on the other hands by giving full credit to the same false statements that NEMA and Hoima Sugar were spreading for the last one year concerning the nature of the habitat and the nature of the land ownership. This bipartisan choice by the court can set a precedent of making false statements to become true, therefore it can encourage further misconduct from the side of those who acquired forest reserve through dubious means at the expense of the citizens of Uganda, the biodiversity, the international civil societies, in the name of “private right of property”. Bugoma Forest is a resource of supreme importance and it is a pain that Court entirely failed to recognize it.
One year of Save Bugoma Forest Campaign was not an attempt to gain visibility and public support based on “sensationalism” and “unsubstantiated allegations” – as Court says -, on the contrary it was an attempt to make public the truth and the facts over the destruction of Bugoma Forest and that this process was reversed. It is only in the interest of Hoima Sugar (and the few powerful politicians behind it) that Bugoma forest should be destroyed. It is in the interest of everybody else, in the world and in Uganda, that environmental crimes are now considered as a number one danger to the social and economic development of our societies. The Court failed to read the changes of the current time, by standing on a very conservative ruling while only recognizing the “right of property” of Hoima Sugar, even when that property is a dubious one (pending court of appeal decision). The Court does not acknowledge that a very limited and improper procedure of acquiring the ESIA caused to the citizens of Uganda a violation of their rights to a clean and healthy environment, which the main government institutions tried to oppose, but NEMA and Hoima Sugar failed them.