The impact of the Evidence Act The Uganda

The impact of the Evidence Act, The Uganda 1995 Constitution, Access to Information Act on the delivery of justice in the modern Technological Era By Justice Geoffrey Kiryabwire

SCOPE OF PRESENTATION • The subject is very wide. • Scope of Paper will therefore cover theme of the workshop which is: “Right of access to information and the Environment” but will extend the application to the Modern Era.

DEFINING DELIVERY OF JUSTICE • From a Judicial Perspective, this means the adjudication of disputes. • Article 126 of the Constitution provides the principles; “(1) Judicial power is derived from the people and shall be exercised by the courts… in conformity with the law and with the values, norms and aspirations of the people”

DEFINING DELIVERY OF JUSTICE Principles of Adjudication Article 126(2) • Justice shall be done to all irrespective of their social economic status • Justice shall not be delayed • Adequate compensation shall be awarded to victims of wrongs • Reconciliation between parties shall be promoted • Substantive justice shall be administered without undue regard to technicalities.

DEFINING DELIVERY OF JUSTICE Section 14(2) of the Judicature Act Cap 13 outlines the Sources of law: • Written Law • Common Law • Custom or Usage • Procedure and practice observed by the High Court • Principles of Justice Equity and good conscience.

DEFINING DELIVERY OF JUSTICE The concept of Delivery of Justice with regard to Access to Information and the Environment should therefore be seen in light of the above principles and sources of law.

INFORMATION AS A TOOL OF DELIVERY OF JUSTICE • From a judicial perspective Information is seen as evidence, the basis of which adjudication can be made. By limiting the flow of Information you are limiting evidence that can be used to deliver justice. • Evidence is “all legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the truth of which is subjected to judicial investigation. ” (Osborn’s Law Dictionary)

INFORMATION AS A TOOL OF DELIVERY OF JUSTICE • Information as evidence can be oral, or documentary (Sections 58, 60 -72 Evidence Act Cap 6). • Documentary evidence can be; - Primary Section 61(Best Evidence Rule S. 63) Omychund VBarker ( 1745) 1 Atk 21, at 49. - Secondary Section 62, that is to say evidence other than “Best Evidence”.

INFORMATION AS A TOOL OF DELIVERY OF JUSTICE • In delivery of justice through a trial, a judicial officer is now required through a pre-trial process called scheduling to assist the parties and ensure that all the evidence to be relied on is available before the trial begins. (O. XB CPR) • This calls for a lot of disclosure and discovery.

CHALLENGES AND CHANGING NATURE OF DISPUTES 1. Who can Sue? (Locus Standi) (a) Traditional Parties - Individuals (Natural and Corporate) Vs Other Individuals and/or the State. (Civil) Motor Garage Vs Motokov ( Party must have interest). - State Vs Individual (Criminal)

CHALLENGES AND CHANGING NATURE OF DISPUTES (b) New Parties include; - Citizens/Publicly Spirited persons - Communities Who would not meet the legal test of Cause of Action under Motokov. Yet the in Environment cases for example the six similar remedies can be prayed for: - Injunctions/ Mandamus - Damages -Restitutions/ remediation - Sanctions and Penalties

CHALLENGES AND CHANGING NATURE OF DISPUTES 2. New Generation rights • Fundamental Human Rights and Freedoms evolved towards the end of the 20 th Century • Examples of these under the new Constitution include; - Art 30 on education - Art. 31 on the family - Art. 37 on culture - Art. 39 on clean and healthy environment These are largely untested in the courts of law

CHALLENGES AND CHANGING NATURE OF DISPUTES 3. Electronic Age Form of Information is changing in terms of; - Storage - Transmission - Publication This ipso facto impacts on the form of evidence that will be adduced at trial.

CHALLENGES AND CHANGING NATURE OF DISPUTES 4. Discovery in complicated matters a) who to sue Uganda Vs Roger Ddungu b) what document to sue on Greenwatch Vs AG and UETCL (Sued to obtain the power purchase agreement for AES Nile Power Ltd ) c) Specialised and scientific findings/reports

CURRENT LEGAL TRENDS AND ACCESS TO INFORMATION 1. Constitutional right to Information Article 41(1) Provides: “ every citizen has a right of access to information in the possession of the state or any other organ or agency of the except where the release of the information is likely to prejudice the security or sovereignty of the state or interfere with the right to privacy of any other person. ”

CURRENT LEGAL TRENDS AND ACCESS TO INFORMATION • Access to Information Act - Section 5 Reiterates the Constitutional Right of Access to information. - Section 11 requires a written request in the prescribed form. Previously one would have to sue to access the information.

CURRENT LEGAL TRENDS AND ACCESS TO INFORMATION - (HCCS No. 0139 of 2001 Greenwatch Vs Ag & UETCL denied the right to information on ground that there was no evidence that the applicant was a Ugandan citizen. • Given the enormous importance of access to information for environmental litigation, it is particularly remarkable that a duty on the state to have or to collect information be addressed in Uganda.

CURRENT LEGAL TRENDS AND ACCESS TO INFORMATION 2. Displacing of locus standi in Public Interest Litigation Article 50(2) Any person or organization may bring an action against the violation of another person’s or group’s human rights

CURRENT LEGAL TRENDS AND ACCESS TO INFORMATION Greenwatch v AG & National Environment Management Authority Misc. App 140/2002 held that Art. 50(2) does not require that the applicant must have the same Interest as the parties he or she seeks to represent.

CURRENT LEGAL TRENDS AND ACCESS TO INFORMATION Article 137(3) A person who alleges that; - an Act of Parliament or any other law or anything in or done under the authority of any law; or any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate.

CURRENT LEGAL TRENDS AND ACCESS TO INFORMATION • Article 17 (1) d Provides “It is the duty of every citizen in Uganda to protect and preserve public Property” ( Kikungwe Issa & 4 Ors Vs Standard Bank Inv. Corp & 3 Ors MA 395/2004)

CURRENT LEGAL TRENDS AND ACCESS TO INFORMATION The issue of locus standi has been settled now; “ 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” (Lord Diplock RE Vs I. R. C. Exp. Federation of Self- Employed ( H. L. (E)) [1982] A. C 643. Relied upon in HC Misc. App 39/2001 TEAN Vs AG & NEMA)

CURRENT LEGAL TRENDS AND ACCESS TO INFORMATION 3. Reliance on Reports a) Section 30 Evidence Act allows adducing evidence in the absence of the author. The “Best Evidence Rule” Has evolved over time: “ the old Rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded has gone by the board long ago. The only remaining instance of it is that if the original document is available in one’s hands, one must produce it. ” Ackner LJ in

CURRENT LEGAL TRENDS AND ACCESS TO INFORMATION b) MA 140/2002 Greenwatch Vs Ag & Anor the applicant relied on a study by International NGO on Plastic Waste Management in India and this was challenged as hearsay. Held: “ The veracity and credibility of the study by means of which the deponent acquired the knowledge deponed to could be challenged but not at this stage. That can be done at the hearing of the application by adducing evidence, disprove, discredit or contradict the study's findings and conclusions” L.

CURRENT LEGAL TRENDS AND ACCESS TO INFORMATION 2. TEAN Vs Ag & NEMA MA 39/2001 - United States Surgeon General’s Report, United States Environmental Protection Agency were relied upon. Held: “ I would myself hesitate to challenge his averments because they are supported by research reports and scientific disclosures. ” Per Ntabgoba (PJ as he then was)

CONCLUSIONS • The Constitution has been of great help in promoting Access to Information and the Environment. • There is a wider interpretation of the Evidence Act • Challenges still present in respect of Access to Information

CONCLUSION The mentioned provisions of the Constitution and the Evidence Act, Access to Information Act have the potential to remove most of the former obstacles to environmental litigation. However, much will still depend on the courts' interpretation of these provisions and, even more important, on the adoption of effective environmental provisions.

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