THE REPUBLIC OF
UGANDA
IN
THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS.
APPLICATION No. 39 OF 2001
1.
THE ATTORNEY-
GENERAL}
2.
NATIONAL
ENVIRONMENT } :::::::: RESPONDENTS
MANAGEMENT
AUTHORITY}
BEFORE:- HON. THE PRINCIPAL JUDGE – MR. JUSTICE J.H. NTABGOBA
On the 31st May, 2001 an
application by notice of motion was filed in this Court by a limited liability
company called The Environmental Action Network Ltd. I will herein refer to it as the applicant.
In the affidavit of Phillip Karugaba sworn in support of the application, he
describes the applicant as a public interest litigation group bringing the application bona fide in
its own behalf and on behalf of the non-smoking members of the public under
Article 50(2) of the Constitution, to protect their rights to a clean and
healthy environment, their right to life and for the general good of public
health in Uganda.
Mr. Karugaba depones that he has
recently learnt of several medical reports highlighting the dangers of exposure
to second hand smoke or environmental tobacco smoke. He sets out various
reports which he says have highlighted the dangers of exposure to second hand
smoke or environmental tobacco smoke. They include:-
1.
The United
States Surgeon General’s Report: - “ The Health consequences of Involuntary
Smoking (1986) which contains the following conclusions: -
(a)
involuntary
smoking is a cause of disease, including lung cancer, in healthy non-smokers;
(b)
the children
of parents who smoke compared with children of non-smoking parents have
increased frequency of respiratory infections, increased respiratory symptoms
and slightly smaller rates of increase in lung functions as the lung matures;
(c)
the simple
separation of smokers and non-smokers within the same air space may, reduce,
but not eliminate the exposure of non-smokers to environmental tobacco smoke
(ETS).
2.
The United
States Environmental Protection Agency (EPA) Report: Respiratory health effects
of passive smoking: Lung cancer and other disorders in children (1992) made the
following major conclusions: -
(a)
that based on
the weight of the available scientific evidence, exposure to Environmental
Tobacco Smoke presents a serious and substantial health impact.
(b)
Environmental
Tobacco Smoke is a human lung carcinogen, responsible for approximately 3,000
lung cancer deaths annually in US non-smokers.
(c)
Environmental
Tobacco Smoke exposure is usually associated with increased risk of lower
respiratory infections such as bronchitis, pneumonia. 150,000 to 300,000 cases
annually in infants and young children up to 18 months of age are attributed to
ETS;
(d)
Environmental
Tobacco Smoke is casually associated with increased prevalence of fluid in the
middle ear, symptoms of upper respiratory tract irritation and small but
significant reduction in lung function;
(e)
Environmental
Tobacco Smoke exposure is casually associated with additional episodes and
increased severity of symptoms in children with asthma 200,000 to 1,000,000
asthmatic children have their condition worsened by exposure to Environmental
Tobacco Smoke;
(f)
Environmental
tobacco smoke is a risk factor for new cases of asthma in children who have not previously displayed
symptoms;
(g)
Environmental
Tobacco Smoke is classified as a Group A Carcinogen under EPA’s Carcinogen
assessment guidelines. This classification is reserved for those compounds or
mixtures, which have been shown to cause Cancer in humans, based on studies in
human populations and for which no safe level of exposure is known.
3.
The National
Health and Medical Research Council Report: “The Health Effects of Passive
Smoking: A scientific Information Paper” concludes that: -
(a)
Passive
smoking contributes significantly to the risk of Sudden Infant Death Syndrome;
(b)
Children Exposed
to Environmental Tobacco Smoke are about 40% more likely to suffer from
asthmatic symptoms than those who are not exposed;
(c)
About 8% of
childhood asthma is attributed to passive smoking (about 46,500 children per
year);
(d)
The risk of
heart attack or death from coronary heart disease is about 24% higher in people
who never smoke but who live with a smoker, compared to unexposed people who
never smoke;
(e)
People who
never smoke and live with a smoker have a 30% increase in risk of developing
lung cancer compared to people who never smoke and do not live with a smoker,
to about 12 new cases of lung cancer and 11 deaths from lung cancer per year
who never smoke”.
I would stop here but suffice it to say
that Phillip Karugaba, in his affidavit gave many more details about the
dangerous effects of Passive smoking.
I would myself hesitate to challenge
his averments because they are supported by research reports and scientific
disclosures.
In paragraph 17 of his affidavit he
depones that “ non-smoking Ugandans have a constitutional right to life under
Article 22 and constitutional rights to a clean and healthy environment under
Article 39 of the Constitution of the Republic of Uganda”.
In paragraph 18 of the affidavit he
refers to the United Nations Convention on the Rights of the Child, to which
Uganda is a signatory and states that “ children have rights to adequate
standards of health under Article 24, a right to life under Article 6 and a
right to an adequate standard of living under Article 27”. He adds in paragraph
19 of the affidavit that “ according to a recent report: -
“Tobacco and
Children’s’ rights” released by the World Health Organization, exposure to
second hand smoke is an infringement of a child’s right to life and to an
adequate standard of health”.
Mr. Karugaba concludes that “ the said
rights of non-smokers and the rights of the children are being threatened by
the unrestricted practice of persons smoking in public places”. (See paragraph
20 of the affidavit).
It is in light of the above that this
application seeks from this Court the following declarations and orders: -
1.
A declaration
that smoking in public places constitutes a violation of the rights of
non-smokers to a clean and healthy environment as prescribed under Article 39
of the Constitution of the Republic of Uganda and s. 4 of the National
Environment Statute 1995.
If I may comment on this declaration
being sought, my view is that it is too sweeping. It could have been worded
thus: -
“A declaration that
unregulated smoking in public places constitutes a violation of the rights of
non-smoking members of the public; and that the respondents should take
appropriate measures to regulate smoking in public places so as to provide a
clean and healthy environment to the non-smoking members of the public”.
2. A declaration that smoking in public
places constitutes a violation of the rights of the non-smoking members of the
public to the right to life as prescribed under Article 22 of the Constitution
of the Republic of Uganda.
Here again I thought that the wording of the prayer should have been that “ Un- regulated smoking in public places violates the right to life of non-smoking members of the public contrary to Article 22 of the Constitution ----“.
3. A declaration that smoking in a public place
constitutes an offence under Ss. 156 and 172 of the Penal Code.
4.
An order that the 1st Respondent
(i.e. The Attorney- General) take steps to ensure the prosecution of persons
committing offences under sections 156 and 172 of the Penal Code Act.
5.
An order that
the second respondent takes the necessary steps to ensure the enjoyment by the
Ugandan public of their right to a clean and healthy environment.
It is pertinent, at this juncture, to
point out that in my ruling of 17/07/2001, I struck out prayers 3 and 4 of this
application on the ground that smoking in public is not a crime either under
the Penal Code Act or under any of our statutes, and Courts have no
jurisdiction to create crimes or criminalise any acts. Nor do Courts possess
any powers to order prosecution, which is the power strictly reserved for the
Director of Public Prosecution.
This present ruling is on several
preliminary objections raised by Mr. Oluka Henry, a State Attorney which appear
in paragraph 8 of his Additional Affidavit in Reply sworn on the 18th
July, 2001. I will do no better than extract the entire paragraph: -
“That
the Respondent will at the hearing of this application raise preliminary
objections seeking to declare that the applicant has no cause of action, that
the evidence on the affidavit in support is based on hearsay; that the
applicant company is not an expert on the effects of secondary cigarette smoke;
that the applicant cannot claim to represent the Uganda public and that no
notice that the present suit would be filed against the respondents was filed
as provided for in the Civil Procedure and Limitations ( Miscellaneous
Provisions) Act as amended of 1969 and the Civil Procedure and Limitations
(Miscellaneous Provisions)(Amendment) Act 2000”.
Paragraph 8 of Mr. Oluka’s affidavit
raises the following issues which I must discuss in this ruling: -
(a)
that the
evidence on the affidavit in support of application No. 39/2001 is based on
hearsay.
(b)
That the
applicant company is not an expert on the effects of secondary cigarette
smoking.
(c)
That the
applicant company cannot claim to represent the Ugandan public. ( Here I
suppose Mr. Oluka is referring to the non-smoking members of he Ugandan
public).
(d)
That the
applicant (suit) did not comply with the provision S. 43 of the Evidence Act.
The section is about persons who give opinion on foreign law, or science or art
etc. as experts. In some situations Court may wish to call such experts to give
opinion, but in some other situations the Court could take Judicial notice of
the opinions without having to necessarily call them. I, however, agree with
Counsel for the applicant that even if it was compulsory for experts mentioned
in S. 43 of the Evidence Act to testify, that would not be necessary with
regard to evidence produced by affidavit because that is the import of s. 2 of
the Evidence Act.
Besides, Mr. Oluka’s preliminary point in which he brands the
documentary presentation, by affidavit, of scientific findings and reports, is
premature and therefore misplaced. The veracity and credibility of evidence is
challenged during the hearing when such evidence is adduced and not preliminary
objection. I would overrule this preliminary objection based on the evidence
the applicant seeks to adduce by affidavits.
I will now deal with another
preliminary objection by MR. Oluka where he challenges the application on the
ground that it did not comply with s. 1 of Act No. 20 of 1969 (as amended),
which requires the Attorney-General and specified corporations, including NEMA,
to be given a notice of intention to sue of 45 days. Here again, with due
respect, MR. Oluka’s objection is misconceived and should be overruled.
Applications brought under Article 50 of the Constitution are governed by the
Fundamental Rights and Freedoms (Enforcement Procedure) Rules (S.I. No. 26/92).
Although Rule 4 provides that no motion
(under Rule 3) shall be made without notice to the Attorney-General and any
other party affected by the application, Rule 7 clearly stipulates that “
subject to the provisions of these Rules, the Civil Procedure Act and the Rules thereunder shall apply in
relation to application”.
Applying the so called golden rule of
Statutory Interpretation, we would be wrong if we assumed that besides Rule 7
of S.I. No. 26 of 1992, Parliament meant that any other rule of procedure
should be applied. It is for this reason that I think that applications
pursuant to Article 50 of the Constitution must be strictly restricted to the
Civil Procedure Act and the rules thereunder and not under S.1 of Act No. 20 of
1969. The Attorney-General and NEMA in this application therefore got the
notice they are supposed to get. Incidentally, this was also the decision in
Rwanyarare & 4 others Vs. Attorney-General (High Court Miscellaneous.
Application No. 85 of 1993). If the rationale for applying the Civil Procedure
Act and the Rules thereunder instead of S.1. of Act 20 of 1969, the Court has
this to say: -
“The object of S. 80
is to give the Secretary of State for India an opportunity of settling the claim,
if so advised, without litigation or, to enable him to have an opportunity to
investigate the alleged cause of complaint and to make amends, if he thought
fit, before he was impleaded in the suit”.
I agree with this requirement that the
respondent, usually Government or a Scheduled Corporation which is supposed to
be busy as Government, needs sufficient period of time to investigate a
case intended to be brought against it
so as to be able to avoid unnecessary expense on protracted litigation. This rationale
cannot apply to a matter where the rights and freedoms of the people are being
or about to be infringed. The people cannot afford to wait 45 days before
pre-emptive action is applied by Court. They would need immediate and urgent
redress. They need a short period which is one provided under the ordinary
rules of procedure provided by the Civil Procedure Act and its Rules. To demand
from the aggrieved party a 45 days notice is to condemn them to infringement of
their rights and freedoms for that period which this Court would not be
prepared to do. Any alleged infringement must be investigated expeditiously
before damage is done.
Other preliminary objection raised by
the learned State Attorney is that the applicant cannot claim to represent the
Ugandan Public and therefore they should have brought the application under
Order 1 Rule 8 of the Civil Procedure Rules which demands that: -
8(1) Where there are
numerous persons having the same interest in one suit, one or more of such
persons may, with the permission of the Court, sue or be sued, or may defend in
such suit, on behalf of or for the benefit of all persons so interested. But
the Court shall in such case give notice of the institution of the suit to all
such persons either by personal service or, where, from the number of persons
or any other cause, such service is not reasonably practicable, by public
advertisement, as the Court in each case may direct”.
(2) Any person on
whose behalf or for whose benefit a suit is instituted or defended under sub-rule
(1) may apply to the Court to be made a party to the suit”.
Here again the State Attorney failed,
in his preliminary objection, to distinguish between actions brought in a
representative capacity pursuant to Order 1 Rule 8 of the Civil Procedure Rules,
and what are called Public Interest Litigation which are the concern of Article 50 of the
Constitution and S.I. No. 26 of 1992. The two actions are distinguishable by
the wording of the enactments or instruments pursuant to which they are
instituted. Order 1 Rule 8 of the Civil Procedure Rules governs actions by or
against the parties (i.e. plaintiff or defendant) together with other parties
that they seek to represent, and they must have similar interests in the suit.
On the other hand, Article 50 of the Constitution does not require that the
applicant must have the same interest as the parties he or she seeks to
represent or for whose benefit the action is brought.
The wording of Article 50 of the
Constitution, especially clauses (1) and (2) clearly show what I am saying. It
is instructive to quote them: -
“50 (1) Any person
who claims that a fundamental or other right or freedom guaranteed under this
Constitution has been infringed or threatened, is entitled to apply to a
competent Court for redress which may include compensation.
(2) Any person or organization
may bring an action against the violation of another person’s or group’s
human rights”.
Clause (2) answers Mr. Oluka’s argument
that the applicant in this application cannot claim to represent the Ugandan
non-smoking public. There are also decided cases which decided that an
organization can bring a public interest action on behalf of groups or
individual members of the public even though the applying organization has no
direct individual interest in the infringing acts it seeks to have redressed.
In the case of RE. –Vs-. I.R.C. Exp. Federation of Self-Employed (H.L. (E))
[1982] A.C. 643, Lord Diplock said: -
“It would , in my
view, be a grave lacuna in our system of public law, if a pressure group, like
the federation or even a single public – spirited tax payer, were prevented by
out-dated technical rules of locus standi, from bringing the matter to the
attention of the Court to vindicate the rule of law and get the unlawful
conduct stopped”. (See also [1901] 2 All. E.R. 93 at p. 107]”.
In his rather politico-judicial
reasoning to support public interest litigation on behalf of the poor, indigent
and unprivileged members of the Tanzanian Society by Public spirited
organizations such as The Environmental Action Network Ltd., Rugakingira, J. of
the High Court of Tanzania (as he then was) had this to say in the case of Rev.
CHRISTOPHER MTIKILA –Vs- THE
ATTORNEY-GENERAL in Tanzanian Civil Suit No.5 of 1993 (unreported): -
“The relevance of public
litigation in Tanzania cannot be over-emphasized. Having regard to our
socio-economic conditions, these (sic) development promise more hopes to our
people than any other strategy currently in place. First of all, illiteracy is
still rampant. We were recently told that Tanzania is second in Africa in
wiping out illiteracy but that is a statistical juggling which is not reflected
on the ground. If we were that literate it would have been unnecessary for
Hanang District Council to pass by laws for compulsory adult education which
were recently published as Government Notice No. 191 of 1994. By reason of this
illiteracy a greater part of the population is unaware of their rights, let
alone how the same can be realised. Secondly, Tanzanians are massively poor.
Our ranking in the World on the basis of per capita income has persistently
been the source of embarrassment. Public interest litigation is a
sophisticated mechanism which requires professional handling. By reason
of limited resources that the vast majority of our people cannot afford to
engage lawyers even where they are aware of the infringement of their rights
and the perversion of the Constitution. Other factors could be listed out
but perhaps the most painful of all is that over the years since Independence
Tanzanians have developed a culture of apathy and silence. This, in large
measure is a product of institutionalized mono-party politics which, in its
repressive dimension, like detention without trial supped up initiative and
guts, the people found contentment in being receivers without being seekers.
Our leaders very well recognize this, and the emergence of transparency in
governance they have not hesitated to affirm it. When the National Assembly was
debating Hon. J. S. Warioba’s private motion on the desirability of a
referendum before some features of the Constitution were tampered with, Hon.
Sukwa said Sukwa, after the interruptions by his colleagues, continued and said
---------------“.
“ Given all these
and other circumstances., if there should spring up a public-spirited
individual and seek the Court’s intervention against legislation or actions
that pervert the Constitution, the Court, as guardian and trustee of the
Constitution and what it stands for, is under an obligation to rise-up to the
occasion and grant him standing”.
If I may revert to Miscellaneous Application No. 39 of 2001, the applicant say they are especially interested in the infringement of the rights and freedoms of the poor, and children – those who cannot know and appreciate their rights abd freedoms and who do not know where to go and how to go there for redress. It is not compelling that a body like the applicant stands up for them and fights for their cause. I think the applicant deserves hearing and I will hear it.
The preliminary objections raised on behalf of the Attorney-General and NEMA, the respondents, are overruled –And they are ordered to pay costs for the consequent delay in hearing the main application. It should be urgently fixed for hearing on merit. I so order.
J.H. NTABGOBA
PRINCIPAL
JUDGE
28.08.01