Environmental Crimes

Scope the Class

 1.Definition of Environmental Crime

 2. Legal Framework for Environmental
Crimes
 3.Legal Technicalities & Principles Relevant
to Prosecution of Environmental Crimes
 4. Limitations of Accessing Justice in
Environmental Crimes
 Definition of Environmental Crimes

 An environmental crime is any deliberate act or

omission leading to degradation of the environment
and resulting into harmful effects on human beings,
the environment and natural resources.
 It include all violations of environmental laws
attracting criminal sanctions.
 THEREFORE environmental crime prosecutions
refer to the prosecution of environmental cases in
the criminal courts.
 Definition of Environmental Crimes cont’d

 Historically, traditional criminal law did not care

about environment protection hence there has
been a tendency of advocating for it to be included
among those crimes that affect or is affected by
public order, morality and social economic
development.
 As other crimes, environmental crimes were
introduced to deter detected violators from
violating again and other potential violators from
violating by sending a message that they too may
experience adverse consequences for non
compliance.
Objectives of environmental
law enforcement
 The question has always been whether
the environment deserves the response of
criminal law
 In subject of environmental law,
enforcement is one of the most important
components. Environmental enforcement
relates to those sets of actions that
Government or other persons take to
achieve compliance within the regulated
community and to correct or halt
situations that endanger the environment
or public health. Enforcement by
Objectives of environmental law enforcement cont’d

 Enforcement of Environmental law usually

includes inspections, negotiations, compliance
promotions and legal actions of civil litigation
and criminal prosecution
 The objectives of deploying criminal law in
environmental law enforcement are to:
✓ confirm standards established in the interest of
the environment or public health;
✓ ensure government credibility and government
control by setting standards and ensuring fair
competition;
✓ protect or restore environmental damage and
ensure sustainable development.
 Legal Framework for Environmental Crimes
The Constitution of the Republic of Uganda, 1995
 National Objectives and Directive Principles of State Policy XXVII
requires the state to promote sustainable development and public
awareness of the need to manage environment for the present and
future generations;
 The utilisation of natural resources should meet needs of present and
future generations of Ugandans;
 The State is required to take all possible measures to prevent or
minimize environmental degradation;
 Article 237 (2) (b) provides for the Public Trust Doctrine: the
Government or a local government hold in trust for and protects natural
resources on behalf of the people of Uganda;
 Article 245 empowers parliament to make laws for the protection of the
environment.
 Article 39 provides that every Ugandan has a right to a clean and
healthy environment
 Article 50 gives any person the right to take judicial action to redress
the breach of a fundamental right, irrespective of whether the breach
affects him or another person.
 THE LEGAL FRAMEWORK CONT’D

The National Environment Act, 2019

 This repeals the NEA made in 1995 which sought to
provide for a more comprehensive and effective
legal framework for criminalisation of and
sanctions against those who commit environmental
law violations, as one of the ways of ensuring
compliance with environmental protection legal
provisions.
 It introduced a fundamental change in the
management of all aspects of the environment.
 The NEA 2019 maintained some crimes created by
the NEA 1995 and also created new ones.
 THE LEGAL FRAMEWORK CONT’D
The Act provides for some Environmental Crimes such as:
 Waste littering (S 97)
 Failure to conduct an Environmental audit ( S 126).
 Conflict of interest ( 152).
 Failure to submit or prepare an Environmental and Social
Impact Assessment (S157)
 Failure by an establishment or individual to operate within
the prescribed minimum standards, criteria and measurements
contrary to section Part IX;
 Bribery (S.154)
 Obstruction of environmental inspector or authorised officer (
(S. 155)
 Impersonation of environmental inspector or authorised officer
( S. 156)
 Failure to establish environmental management system. ( S.
158)
 THE LEGAL FRAMEWORK CONT’D
 Compliance with Seizures (S.159)
 Removing or defacing NEMA’s seals ( S.160)
 Unlawful dealings in hazardous chemicals ( S161);
 Illegal management of waste (S.162);
 Pollution contrary to (S.163);
 Failure to comply with orders, notices and
environmental easements (S. 164);
 Failure to comply with environmental standards (S
165);
 166. Failure to keep records, reports and other
documentation ( S. 166)
 Alerting offender (S.167);
 Conspiracy to commit an offence ( S.168)
Legal Framework cont’d

Offences under the Wildlife Act

Section 29 (a)-(f) General Offences in wildlife
conservation areas
 hunts, takes, kills, injures or disturbs any wild
plant, wild animal or domestic animal;
 takes, destroys, damages or defaces any object of
 geomorphological, archaeological, historical,
cultural or
 scientific interest, or any structure lawfully placed
or constructed;
Legal Framework cont’d

 prepares land for cultivation, prospects for minerals or

 mines or attempts any of these operations;
 drives, conveys or introduces any wild animal into a
 wildlife conservation area;
 wilfully drives, conveys, introduces any domestic animal
 into a national park or negligently permits any domestic
 animal, of which he or she is for the time being in
charge,
 to stray into a wildlife conservation area; or
 starts or maintains a fire without lawful authority
Legal Framework cont’d

 Section 30 Entering a Wildlife Protected Area without

authority

 Section 36 (3) Engaging in (any activity under Section

35) without a wildlife use right

 Section 43 (7) Failure to comply with a stop notice or

any part of the stop notice

 Section 47 (10) & (11) Transfer, attempts to transfer or

accepts or attempts to accept a quota without
permission
Legal Framework cont’d

 Section 52 (a) Conducting business as a

professional hunter or professional

 trapper without a licence

 Section 52 (b) Advertising as a professional

trapper/hunter without a license
Legal Framework cont’d

 Section 52 (c) Soliciting a contract or commission to

act as a professional hunter or professional trapper
without a license

 Section 52 (d) Assisting another person to hunt a

protected animal for gain or reward without a license

 Section 57 (2) (3) Failure to report killing of a wild

animal in self-defense and or hand over of the
carcass
Legal Framework cont’d

 Section 59 (1) and 51 (3) Failure to report accidental killing

of a wild animal

 Sections 60 (1) and 60 (2) Failure to capture/kill a wild

animal upon wounding orfailure to report wounding a wild
animal

 Section 61 Failing to report wounding a dangerous animal

to an officer

 Section 62 (2) (a) Imports/exports or re-exports/attempts

to import/export/orre-export any species or specimen
without a permit
Legal Frameowork cont’d

 Section 62 (2) (b) Imports/ exports or re-exports/attempts to

import/export/or re-export any species or specimen without
passing through a designated customs post or port a permit

 Section 63 (2) Contravention of additional restriction on

import, export, re-export or transit of wildlife species or
wildlife specimen
Legal framework cont’d

 Section 71 (1) (a) Taking, hunting, molesting or reducing into

possession a protected specimen

 Section 71 (1) (b) Possession, selling, buying, transferring or

accepting transfer of protected specimen

 Section 76 (2) Failing to comply with court order on disclosure

of assets
 THE LEGAL FRAMEWORK CONT’D
The Water Act Cap 152
 Provides for the use, protection and management of
water use and supply.
 It creates the following offences:
 causing or permitting any waste to be discharged
directly or indirectly into any water without waste
discharge permit (S 28).
 prohibits the causing or allowing of water to be
wasted, misused, or excessively consumed; or taking or
using water for a purpose other than provided by the
water permit (S39 (1) ) .
 assaulting, threatening, resisting, obstructing,
hindering or delaying an authorised person or a public
authority in the performance of any function or duty
under the Act ( S 39 ( 2) & 103) .
 THE LEGAL FRAMEWORK CONT’D

The National Forestry and Tree Planting Act 2003

The Act to provides for the conservation, sustainable management
and development of forests for the benefit of the people of Uganda
and it establishes NFA
It creates the following crimes :
✓Cutting , disturbing, damaging, burning or destroying any forest
produce, or removing or receiving any forest produce in a forest
reserve without a authorization or licence ( Section 14).
✓ Cutting , taking, working or removing forest produce; clearing,
using or occupying any land for grazing; camping; livestock
farming; planting or cultivation of crops, erecting of a building or
enclosure; or recreational, commercial, residential, industrial or
hunting purposes; collect biotic and abiotic specimens; or
constructing or re-opening a road, tracking , bridge, airstrip, or
landing site in in a forest reserve or community forest without a
licence (Section 32 & 34)
 THE LEGAL FRAMEWORK CONT’D

 Export of timber without an export licence S. 4

 General offences under S. 81 include:
✓ contravening any of the terms or conditions of a
licence granted under the Act;
✓ without due authority, altering, moving, destroying or
defacing any boundary mark of a forest;
✓ failing to sustainably manage, maintain and control a
forest in accordance with the Act;
✓ failing to comply with a management plan;
✓ failing or neglecting to plant trees in accordance with
this Act;
✓ fails to comply with the order of an authorised person,
 THE LEGAL FRAMEWORK CONT’D
 Other offences under section 82 include:
✓Counterfeiting any licence or found in possession of a
licence which is fraudulently issued;
✓ submitting false information in an application for a
licence under this Act;
✓counterfeiting, alters, obliterates or defaces any stamp,
mark, sign or licence issued under the Act;
✓ knowingly receives or keeps in his or her possession any
forest produce which is fraudulently marked or which has
been cut or removed in contravention of this Act;
✓Counterfeiting fraudulently uses on any forest produce,
a mark used by an authorised person; or
✓transporting, dealing in or storing timber with
counterfeit marks
 3. THE LEGAL FRAMEWORK CONTINUED
 The Penal Code Act Cap 120
The Penal Code creates following crimes:
✓ Nuisances and offences against health and convenience
are prohibited (XVII);
✓ provides for offences endangering life or health (XXII);
✓ Negligent acts likely to spread infection of disease are
(section 171);
✓ Adulteration of food or drink (section 172);
✓ Fouling water (section 176);
✓ Fouling air is prohibited (section 177).
 THE LEGAL FRAMEWORK CONT’D

 The KCC Solid Waste Management Ordinance 2000

 This Ordinance applies to all areas of the district,
including private premises, Government-owned
properties and council properties.
 Under Para Rule 5 (1) it is an offence for any person
to litter waste on public or private property, street, in
a trench, channel, park, pond, stream, lake, river.
 Under Para 20 it is an offence for a person:
✓ not authorised by the council to remove, collect or
disturb solid waste in containers, or to remove solid
waste from a container;
✓ other than the council or licensed solid waste
transporters to collect and dispose of solid waste;
 LEGAL FRAMEWORK CONT’D

✓ to use for any purpose other than its intended

purpose, a skip provided by the council;
✓ to scatter or litter solid waste upon any private or
public property to collect, transport, remove or
dispose of refuse at a fee or other consideration
without a valid permit from the council.
 Under Para 26 it is an offence for any person to
haul or cause to be hauled on or along any public
street, right of way or alley in the city, any solid
waste, unless tha waste is in a vehicle or
receptacle so constructed or covered as to prevent
the contents from falling, leaking or spilling and to
prevent any obnoxious odour escaping from the
waste.
 LEGAL TECHNICALITIES & PRINCIPLES RELEVANT TO
PROSECUTION OF ENVIRONMENTAL CRIMES
 Environmental law provides for anticipatory injury or
damage. Even where a violation of the law may not
necessarily result in any direct or immediate injury to
person or property, failure to comply with the law is an
offence;
 Environmental laws punish violations of the law provisions.
Unlike the traditional criminal offences under the Penal
Code Act which prohibit specific acts and impose penalties
for those acts, environmental statutes tend to provide for
criminal penalties for violation of any of the provisions of
the Statute.
 Environmental offences tend to impose strict and vicarious
liability. Although the burden of proof lies with the
prosecution, there is no need to prove means rea (criminal
intention).
 Environmental laws are regarded as 'public welfare' statutes
(creating public welfare offences). The law is aimed at
protecting human health and the environment.
 LEGAL TECHNICALITIES & PRINCIPLES RELEVANT TO
PROSECUTION OF ENVIRONMENTAL CRIMES
 Environmental law provides for anticipatory injury or
damage. Even where a violation of the law may not
necessarily result in any direct or immediate injury to
person or property, failure to comply with the law is an
offence;
 Environmental laws punishes violations of the law
provisions. Unlike the traditional criminal offences under
the Penal Code Act which prohibit specific acts and impose
penalties for those acts, environmental statutes tend to
provide for criminal penalties for violation of any of the
provisions of the Statute.
 Environmental offences tend to impose strict and vicarious
liability. Although the burden of proof lies with the
prosecution, there is no need to prove means rea (criminal
intention).
 Environmental laws are regarded as 'public welfare' statutes
(creating public welfare offences). The law is aimed at
protecting human health and the environment.
 MECHANISMS CONT’D

Measures used in Environmental Law are:

 Prohibitions: These are absolute and dispense with the need
to prove intent or negligence - mens rea. It is an Act which is
prohibited and not the results. This makes the burden of proof
easier since it is based on strict liability.
 Anticipatory Prevention: This requires prior activities to be
done before the environment is modified. EIA, environmental
audits are an example.
 Permits and licenses: These grant environmental regulatory
authorities the power to issue, revoke or incorporate
conditions in permits or licences.
 Improvement and Restoration Orders: These require an
owner or operator of a facility to adopt specific measures in
order to abate the environmental degradation.
 Environmental standards: This is the setting of limits,
standards and measures for emissions, discharges and other
environmental degrading activities.
 MECHANISMS CONT’D

Processes of Environmental Criminal Law:

 Reporting of cases: The practice has been that
aggrieved members of the public or interested
environmental concern groups report a case to a
lead agency, the District Environment Office or
NEMA headquarters;
 Investigations. Environmental inspectors
established under the NEA play a key role to gather
scientific evidence and make reports. These are
some of the expert witnesses the courts should
expect to see commonly, testifying in
environmental hearings.
 MECHANISMS CONT’D

 Decision to prosecute: The decision to prosecute is by the

DPP, but NEMA plays an important role. Other players and lead
agencies also inform and bring to notice the police and DPP.
 Courts: adjudicate cases, consider jurisdiction and grant bail .
They impose punishments such as fines, imprisonment.
 The Role of Environmental Police Protection Unit (EPPU)
 In 2011, the Government of Uganda through the Ministry of
Water and Environment set up the Environmental Protection
Police Unit (EPPU) to enforce environmental laws and prevent
the degradation of protected areas.
 Section 25 of NEA 2019 provides for establishment of
Environmental Protection Force to comprise persons appointed
by NEMA in consultation with the Uganda Police Force.
 MECHANISMS CONT’D

 Use of complementary methodologies for promoting

access to justice such as:
✓ alternative dispute resolution (ADR)
✓ traditional dispute resolution mechanisms (TDRM)
as tribal councils,
✓ involvement of local government customary
authorities, donors, business, civil society as well
as social movements.
 LIMITATIONS OF ACCESSING JUSTICE IN ENVIRONMENTAL
CRIMES

 There is poor enforcement of existing legislation, mainly

because law enforcement agencies have limited capacity to
detect arrest and enforce the laws on environmental crime.
 Collection, testing, storage of evidence may be challenging;
 Inadequate community participation in the fight against
environmental crime undermines the credibility and
integrity of the overall regulatory regime.
 Inadequate sensitisation about environmental rights and
duties to the people at the grassroots;
 Limited use of traditional dispute resolution mechanisms
(TDRM) as tribal councils and involvement of customary
authorities,
 Corruption in institutions and by citizens;