OPTIMISM AS NEMA APPEALS HIGH COURT 178BN DECISION AWARDING COMPENSATION TO SAND MINING INVESTOR WALUGEMBE OVER LWERA
Court sources have revealed to Mulengera News website that NEMA lawyers have filed their notice of appeal showing displeasure with Justice Andrew Bashaija’s Wednesday 20th May ruling that curiously awarded Shs178bn to Pastor Daniel Walugembe whose company had its sand mining and fish farming licenses and permits cancelled early 2019 ostensibly for breaching the relevant conditions. (See related reporting here https://mulengeranews.com/fury-as-justice-a-bashaija-awards-city-pastor-daniel-walugembe-shs180bn-over-his-lwera-sand-mining-deal-mps-caused-nema-to-cancel/; https://mulengeranews.com/why-sand-mining-is-big-business-these-days/).
The generous award of Shs178bn to Walugembe, who the MPs on the Natural Resources Committee had considered to be an encroacher on the Lwera wetland that deserved criminal sanctioning, caused plenty of outrage especially among MPs who saw this as an attempt to demonize Parliament because it was on the legislature’s intervention that prompted NEMA management to halt all the sand mining operations and fish farming activities which Walugembe’s company had initially been authorized to carry out. Some of the MPs had plotted to use next week to get the Parliamentary leadership insist that AG William Byaruhanga, who was sued in representative capacity being the lawyer of Parliament, appeals against what they consider to be a very anomalous decision by Justice Bashaija.
NEMA’s determination to appeal against the decision will lead to increased scrutiny upon not only Justice Bashaija’s latest Lwera decision but many others High Court judges have been handing down in environmental-related disputes. Already some NGOs and environmental activists feel that environmental law, which NEMA is mandated to enforce, is generally alien to many judicial officers and even lawyers themselves who are mostly accustomed to Common Law-based remedies and principles. There is widespread concern that even judges themselves understandably don’t deeply appreciate the difference between common law principles and principles governing environmental law.
“If this wasn’t the case, the High Court in that latest Lwera decision might have found default on part of NEMA but wouldn’t have awarded such an outrageous figure in compensation and damages in favor of a permit holder who clearly was in breach of the conditions governing the sand mining permit NEMA had issued to his company,” says a civil society leader renowned for his keenness on environmental law issues.
The activist wasn’t comfortable being quoted fearing reprisals of the judges in case they gang up against him in future yet he is also an advocate of the High Court. “This is the reason why some of us think it was a mistake for Parliament to remove clauses in the NEMA Bill of 2018 that required establishment of an environmental court. It’s where cases like that one would naturally have been filed and such specialized courts would have judges who are specially schooled on environmental law and practices as opposed to subjecting such disputes to general common law principles of contract breaches and the like.”
Even now, says the activist, all isn’t lost because the Chief Justice can administratively create a division of the High Court that is specifically dedicated to environmental law cases and disputes the way we have those for land, family, commercial, civil or even criminal matters. Activists are of the view that such a Division of the High Court will diminish prevalence of such controversial decisions and award of compensation and damages like has been manifested in the Lwera wetland case whose Shs178bn award has caused outrage among lawyers, legislators, civil society and even Bashaija’s fellow judicial officers.
In their Friday 22nd May communication to the High Court Civil Division registrar, NEMA lawyers demand to be furnished with certified copies of the ruling and record of proceedings to enable them prepare the filing of their appeal challenging the Wednesday decision making curiously wealthy Pastor Daniel Walugembe (of Internal Gospel Church) even richer. There is high optimism among MPs, activists and other stakeholders who are keenly following the matter that the NEMA appeal stands high chance of success because the permit holder (Walugembe’s company DMW Uganda Ltd) committed clear breaches as stipulated in the conditions that went along with his three permits authorizing him to carry out fish farming and sand mining over a vast piece of land in the Lwera wetland for 3 years. There is also optimism that the resultant scrutiny could increase pressure on the judiciary leadership to designate a High Court Division specifically charged with resolving and adjudicating over environmental matters and disputes.
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