Public Trust Doctrine; Key Cases & Environmental Law Aspects

Public Trust Doctrine in Uganda.

The government by virtue of article 237 and  objective 8 of the National Objective and National Policy is responsible for mineral ownership .  The state is mandated to protect important natural resources, including land, water, wetlands, minerals, oil, fauna and flora on behalf of the people of Uganda since they are for the benefit of all people.

NB: the term "public trust doctrine" in the constitution is not expressly mentioned however it is inferred from practice and supportive literature. it is made operational under sec. 5 of the National Environmental Act which operationalizes article 237(2)(b) of the 1995 constitution. 

The concept has been  recognized in Uganda and has been tested in several cases under public interest litigation. The first time the doctrine was tested before the courts of law was in 2004 in Advocates Coalition for Development and Environment V Attorney General (Misc. cause no 0100 of 2004.  In this case Kakira sugar company had a long standing lease to take firewood from Butambira Forest Reserve for its sugar factory. Kakira applied to NEMA to turn the forest into a plantation which the government accepted. ACODE protested and brought the suit under public trust doctrine and public interest litigation.

The High court held that the government had breached its duty of holding property in trust for the people by not obtaining consent from the local community and not carrying out an environment impact assessment. The court observed that although the government had no  right to alienate the jus publicum in trust lands, it could issue permits or licences only with local consent which was not evident in the case of Kakira.

Any member who wishes to bring a suit under public trust doctrine can commence his suit under article 50 of the constitution. This very provision authorize a person or organization whose rights have been infringed to file suit to vindicate another person’s rights.  This makes it clear that human rights are inherent and not granted by the state.

 

Remedies in case of violation of the Public Trust Doctrine.

 Violation of the Public Trust Doctrine are subject to injunctive relief, revocation of the Jus Privatum granted in trust resources and possibly damages and restitutions.

In the ACODE case, an injunction was offered to restore the forest to its  pre-permit conditions.

 

The following are some of the key cases decided along the PUBLIC TRUST DOCTRINE:

(a)   Niaz Mohamed Jan Mohammed V Commissioner of lands.

The plaintiff hade been registered proprieter of a property measuring approximately 3.63 acres in Kisauni – Mombasa. During the construction of the new Nyali Bridge, it became necessary to construct anew road to Kisauni and Nyali estate.  The road was opened for public use until November 1995 when it was alleged that the Commissioner of lands had created a new leasehold from a portion of the road uncovered by tarmac.  The plaintiff saw this as a deliberate attempt to unlawfully alienate public land to private developers and the respondents challenged his locus standi.

It was held that the plain tiff was a member of the public who had locus standi to question the propriety of the dealings by authorities dealing with public land which was held in trust for the people.

 

(b)   Nairobi Golf Hotels (Kenya) Ltd v. Pelican Engineering and Another. Civil  case 706 of 1997.

 

The applicant sought a permanent injunction which sought to restrain the defendant from constructing on Gatharani river from diverting the water. The defendant raised a preliminary objection against the applicant and stated that under article 3 of the water Act, water is vested in government and so the plaintiff had no locus standi. The defendants further averred that the plaintiff should have lodged a complaint with the Water appointment Board and that since land had been leased to someone else, it was wrongly sued.

 

The preliminary objection was overruled and It was held that the water act does not affect the right of anyone to bring any action or take any proceedings against the defendant for the alleged illegal construction of the dam and alleged diversion of water and an injunction was granted. 

 

(d) Abdikadir Sheikh Hassan & 4 Others v. Kenya Wildlife Service

Court granted an injunction to the applicant who asked for restraining orders against the defendant for removing g or dislocating a rare and endangered animal from its natural habitat in Tsavo National park.

In regards, to Public Trust Doctrine it is also important to understand the case of Paul Nderitu Ndungu and 2 Others v. Pashito Holdings Limited & Another Sierra Club v. Rogers C.B. Morton & Another and the case of  Re: Human Rights Case.

Therefore, it is evident from the above that the doctrine of public trust doctrine is to the effect that the government keeps some resources on behalf of the people and it cannot alienate them since it’s the trustee.

"A family which Reads together, passes together"

 AHIMBISIBWE INNOCENT BENJAMIN

(Entertainment Lawyer)