NEMA clarifies on Law Society’s challenge on car dustbin penalty
- ENVIRONMENTFEATUREDLEGAL COLUMN
- March 22, 2023
- No Comment
By Evans Najuna
Kampala – The National Environmental Management Authority (NEMA) has clarified on Uganda Law Society’s concern on the ‘car dustbin penalty.’
Through a press statement released Tuesday, the Authority stated that it has noted the concern raised by Uganda Law Society in the article that appeared in the Daily Monitor published on Monday 20th March under the headline ‘Uganda Law Society Challenges NEMA on the car dustbin penalty.’
NEMA also acknowledges that it is indeed received a letter from the same ULS seeking clarity on the basis and prescription of the Shs6m maximum fine for driving a car without a trash bin.
According to NEMA, these fines were not newly drafted nor legislated by the executive as secondary or subsidiary legislation. The Authority quoted Section 172(1) of the National Environment Act No.5 of 2019, that provides that whereas the Authority, an authorized officer or environmental inspector has a reasonable belief that a person has contravened the provisions of the National Environment Act, the Authority, authorized officer or environmental inspector may impose an administrative fine and serve a notice on that person.
Section 172 (2) of the said Act, further provides that NEMA may require the person served with a notice under Subsection (1) to pay the administrative fine within the time prescribed in the notice. The notice shall therefore specify; the date and nature of the alleged contravention, contain a summary of the facts which the Authority or authorized officer alleges, be endorsed with a statement setting out the provisions of the law contravened, specify the penalty payable; and state the bank details of the bank Account of the Authority in which the payment is to be made.
NEMA says it is from the above provisions in the law, it follows that a fine can only be levied for a committed offense in the law. As such, the figures published by NEMA as maximum chargeable fines for environment breaches are derived from the National Environment Act, 2019 and since they are administrative fines, they are in all cases below the maximum stated in the law and in most cases as low as 50% of the maximum prescribed in the Act.
The the Authority further explains that, the fines are voluntary and are meant to avoid congesting the judicial system with prosecutions of common offenses and indeed congesting Uganda prisons. They however say that, should the person who has committed the offense prefer not to pay the fine, they are free to choose the option of being prosecuted for the offense committed which would in any case result in higher penalties including financial and custodial sentences.
In addition, the matter of having a trash bin in a vehicle is a means to enforce section 97 of the National Environment Act which addresses the prohibition of littering. Sub-section 3 of section 97 says a person driving a vehicle is responsible for the sanitary condition of the vehicle, and for the waste generated therein.
In this case, at the commencement of the Administrative Penalty Scheme, NEMA will focus on public transport vehicles such as buses and commuter taxis, particularly those that do long-haul commutes where waste is generated as a result of journey refreshments, and child care among others. For private vehicles, they will be attended to in the subsequent phase of implementation.
“We call upon Ugandans to embrace wise use of our environment because, everybody has the right to a clean and healthy environment, and every person must create, maintain and enhance the environment, including the duty to prevent pollution” they stated. Adding that these fines are derived directly from the provisions of existing laws promulgated by Parliament.
On 8th February 2023, NEMA through the executive director Barirega Akankwasa announced the penalty scheme for environmental breach, which will also affect motor vehicles without car dustbins of which penalty scheme exercise will commence on 1st April.
The information that prompted the Uganda Law Society through their president Bernard Oundo seeking the Authority’s legal powers for the penalty scheme. In his letter dated 16th March, Oundo argues that the offences being introduced by NEMA are not prescribed by the laws of Uganda.