By Bakampa
Brian Baryaguma
1.
Introduction
In
the book of Genesis 1:26-31, the Bible describes God’s creation of human beings
and His (God’s) grant of dominion to them over the world. Among others, the
Lord said, ‘They will have power over the fish, the birds, and all animals,
domestic and wild, large and small. ... I am putting you in charge of the fish,
the birds, and all the wild animals.’ Uganda has its fair share of this divine
endowment, with many wildlife species. Among others, the country ‘... is home to a healthy population of over
5,950
chimpanzees, at least 50% (350) of the global
population of the rare and endangered mountain gorilla (Gorrilla gorilla beringei), over 10% (1006) of
the world’s species of birds and an estimated 4600 plant species.’[1]
That’s why ‘Over 10% of Uganda’s surface area is set aside as wildlife
protected areas.’[2] Clearly
therefore, the importance and relevance of wildlife cannot be overemphasized.
Like
many other countries, we have moved on from spiritual ownership to temporal
ownership by enacting The Wild Life Act,
of 1996 (hereinafter ‘the Act’),[3]
which states, under Section
3(1), that the ‘The ownership of every wild animal
and wild plant existing in its wild habitat in Uganda is vested in the Government on behalf of, and for
the
benefit of, the people of Uganda.’ The enactment of
this law is in line with the constitutional mandate under objective XIII of the National Objectives and Directive Principles of State Policy on protection
of natural resources, which states that, ‘The State shall protect
important natural resources, including land, water, wetlands, minerals, oil, fauna and flora on behalf of the people
of Uganda.’ Therefore, the
Constitution of Uganda considers wildlife as an important element of the
ecological system, whose conservation, management and protection are of
critical importance.
This
is also clear from the purposes of the Act, as stipulated under Section 2, subsection
(1) of which provides that,
The purposes of this Act are to promote—(a) the conservation of wildlife throughout Uganda so that the abundance and diversity of their species are maintained at optimum levels commensurate with other forms of land use, in order to support sustainable utilisation of wildlife for the benefit of the people of Uganda;......................(f) the enhancement of economic and social benefits from wildlife management by establishing wildlife use rights and the promoting of tourism.
These
purposes are in line with the scriptural grant in Genesis 1:26-31 and in order
to give them effect, there is embedded in the Act, a notion of community rights. This notion
appreciates that communities cannot be divorced from their surrounding
environment and as such therefore, they should be involved in its conservation,
management and protection, as key players. Under Section 1(g), the term community ‘means an
assemblage of human beings living in a defined geographic area and identified
by common history, common culture or common residence in that area.’ Depending
on the interpreter and the reasons for interpretation, the term community may denote the country Uganda,
on the one hand, while on the other, it may as well refer to differentiated
groups in Uganda and the totality of individuals forming those groups.
Whichever way one looks at, the purposes of the Act remain intact.
The Act is primarily administered by the Uganda
Wildlife Authority (hereinafter ‘the Authority’), established under Section
4(1) and is therefore, the vanguard of community rights in Uganda. This essay
studies provisions of the Act in light of the notion of community rights, with special emphasis on how it ensures the local
community rights. It analyzes these rights and the implementation mechanisms
within the Act for safeguarding them.
2.
Wildlife
Law and its Role in Ensuring Local Community Rights
The term wildlife is defined under Section 1(jj) of the Act. It ‘means any wild plant or wild
animal of a species native to
Uganda and includes wild animals which migrate through Uganda.’ The ownership of every wild animal and wild
plant existing in its wild habitat in Uganda is primarily vested in the
Government of Uganda, on behalf of and for the benefit of, the people of
Uganda, as provided under Section 3(1) of the Act. Nevertheless, communities
enjoy rights over the wildlife in their areas, because to them ‘Wildlife is an
important resource base for food, recreation, education and scientific research
and the mainstay for tourism development.’[4]
The types of wildlife use rights are
spelt under Section 29(1) of the Act, which states that:–
(1) The following wildlife use rights are established under this Act—(a) hunting: class A wildlife use right;(b) farming: class B wildlife use right;(c) ranching: class C wildlife use right;(d) trading in wildlife and wildlife products: class D wildlife use right;(e) using wildlife for educational or scientific purposes including medical experiments and developments: class E wildlife use right;[5](f) general extraction: class F wildlife use right.
These are the core of the
notion of community rights in our wildlife law and they are entrenched in the Act, such that even after being granted to
communities and members of those communities, they cannot be varied (as
provided under Section 38) or revoked (as provided under Section 39), at will.
Under Section 35(5), the authority is obliged to give an oral hearing to the
beneficiaries who may be affected by the variation or revocation. This shows that Uganda’s wildlife law is
quite accommodative and elaborate in ensuring local community rights. The
following discussion throws more light on this.
A.
Ownership of Wildlife
Section 3 of the Act lays out the ownership scheme
of Uganda’s wildlife. They are owned and governed under different institutional structures, ranging from complete
governmental control to
community and private sector ownership.[6]
Under subsection (1), Government of Uganda is the primary owner of wildlife in
Uganda, in trust for the people of Uganda. Under subsections (2) and (4), individual
ownership of wildlife is provided for, where a person lawfully takes or took any
wild plant or wild animal. Under subsection (3), private ownership under
licence is allowed, where any protected species is lawfully taken under a
permit or a licence issued or wildlife use right granted or issued under the
Act. This ownership scheme recognizes and protects community proprietary
interests in wildlife.
B.
Community Participation in Wildlife Conservation
Our wildlife law is mainly
conservation oriented, because ‘Uganda has
encouraged non-consumptive use through tourism since the colonial days of the
1960s.’[7]
This inevitably involves gazetting off wildlife
conservation areas and to this end, the Act provides that communities must be
involved in this process. Thus, under Section 17(1), the Minister must
consult the local government council in whose area (land or water) a proposed
wildlife conservation area falls before declaring it a wildlife conservation
area. This duty ensures that the interests of the community are noted and subsequently
catered for adequately. For instance, if the community members depend on the
area for hunting, fishing, medicine or residence (like the Batwa in Bwindi
Impenetrable Forest) purposes, those interests must be preserved.
Taking serious decisions like gazetting without
consulting and involving communities can have far-reaching and disastrous
consequences. For instance, in March 2002, six villages of Mpungu Parish in
Kanungu District (also known as the Mbwa Tract since they are astride Mbwa
River) were disposed of their ancestral land, by virtue of a resolution passed
by the Seventh Parliament that formally gazetted and recognized the alterations
of the boundaries of Bwindi Impenetrable National Park (BINP), in the erroneous
belief that they once formed part of the Bwindi Impenetrable Forest Reserve.[8]
They are now liable to eviction. By providing that communities must be
consulted and involved in wildlife affairs, the Act aims at preventing such unfortunate
developments.
C.
Resource
Access
Uganda is endowed with a high-value renewable
natural resource base, whereby the
wildlife sector alone has 10 national parks, 12 wildlife reserves and 14 wildlife management areas that cover a
considerable portion of Uganda’s
land surface.[9] Community interests in these wildlife protected areas are preserved even
after gazetting an area as such. Thus, under Section 23(a) of the Act, the
Executive Director of the Authority is empowered to issue a permit to any
person intending to harvest a resource within a wildlife protected area,
without necessarily committing an offence.
This provision motivates community members to
preserve neighbouring wildlife resources, since that way, they perceive wildlife
not as a destructive and non-productive resource of no benefit to them, but as
a useful component of the ecological system as a whole. They therefore find
need to protect the wildlife, rather than encourage poachers to kill them for food
and trade. Consequently, this prevents illegal resource off-take tendencies like poaching,
both within and outside protected areas, which for instance, slashed
elephant numbers in Queen Elizabeth National Park by 90 percent over the past
30 years.[10]
D.
Preservation and Enforcement of Community Rights
Further, some rights are
ancient; perhaps as old as the communities themselves; they are historical and
it is only fair that they are maintained. Therefore, under Section 25, the Act
protects the historic rights of individuals in conservation areas. Under subsection
(1), these are the persons whose rights were preserved, until the coming into
force of the Act, by: –
(a) the Game (Preservation and Control) Act,[11] namely—(i) persons, their wives and children actually residing in game reserves on the 1st July, 1959;(ii) any persons actually residing in game reserves at the date of their declaration, for those game reserves declared after the 1st September, 1959;(b) the National Parks Act,[12] namely, those persons who lawfully acquired rights in national parks before the 3rd April 1952;(c) the Forests Act,[13] namely, those persons residing in forests whom the Minister may have exempted from the provisions of that Act and which forests have since been declared national parks under the National Parks Act.
Further, under subsection (2), the Authority is mandated
to ‘... establish guidelines for access of communities neighbouring conservation areas to resources which are crucial to
the survival of those
communities.’ The Authority has therefore, come up with draft regulations to
effect this: The Uganda Wildlife
(Hunting and Licensing) Regulations, 2005, to regulate
hunting in national wildlife protected
areas and The Uganda Wildlife
(Control of Trade in Wildlife) Regulations, 2005, to regulate wildlife
related commercial activities. Once cleared, these regulations will formalize
and ease community access to and utilization of wildlife resources as envisaged
in the Act.
E.
Collaborative Management
For a long time (since
colonial times and until recent years), the management of national parks has excluded the local communities. To address this anomaly, the Act employs a
strategy of collaborative management, also known as stakeholder involvement,
whereby the Authority works in conjunction with local communities in its
implementation. Under this approach, ‘... it is believed that listening
to, and discussing and establishing partnership and benefit-sharing relations
with the people are key to successful wildlife conservation.’[14]
Thus, under Section 32(1)(b), it is provided that on
receiving an application for one or more wildlife use rights from a person,
community or lead agency under Section
31(1), the Authority should send a copy of the application to the
district council having jurisdiction in the area of the application, requesting
the district council to comment on the application within twenty-one days of receiving
the application. Under subsection (7) thereof, the wildlife use right may be
granted subject to conditions concerning persons within a community or
organisation who may exercise the wildlife use right. These provisions
appreciate that the communities surrounding wildlife protected areas have an
important role to play in the management of those areas, which is in line with
the collaborative management or stakeholder involvement strategy.
F.
Wildlife Use Rights as Property Rights
By and large, the Act
treats wildlife use rights (provided under Section 29) as property rights and
are deeply entrenched as such. This is for instance, clear from their mode of
transfer, under Section 41(1) of the Act. It provides for the transferability
of wildlife use rights, in the following terms:
(1) Wildlife use rights shall be transferable as follows—(a) a class A and class E wildlife use right shall be transferable only with the permission of the authority;(b) a class B, class C, class D and class F wildlife use right shall be transferable as a private property right subject to this Act;(c) other classes of wildlife use rights created by regulations made by the Minister under this Act shall be transferable to the extent and in accordance with procedures prescribed in those regulations.
Therefore, these rights
are subject to constitutional guarantees and protection under Article 26 of the
Constitution, which provides that every person has a right to own property either individually or in association with others. Consequently, any attempt to deny
communities of the benefit of these rights is tantamount to a constitutional
violation.
G.
Trophy Hunting
and Wildlife Trade
The Act appreciates that there are community
members who are interested in consumptive use of wildlife, involving the
commercialization of wildlife and wildlife products, through trophy hunting and
wildlife trade, as part of enhancing ecosystem services. For instance, it caters
for professional hunters and trappers, under Section 45, who engage in hunting,
not as a means of livelihood, but for leisure and pleasure. Their rights are
preserved and respected as well. Under subsection (1) thereof, the Board of
Trustees of the Authority is empowered to issue to any person a professional
hunters licence or a professional trappers licence, on such terms and
conditions as it thinks necessary, including the payment of fees.
H.
Revenue
Sharing
Wildlife protected areas are sources of income for
the Government, which owns most of the wildlife in trust for the people of
Uganda, as provided under Section 3(1) of the Act. In fact, ‘Wildlife is the
main tourism attraction in Uganda contributing significantly to the nation’s
revenue and foreign exchange earnings,’[15]
contributing significantly to the national purse. From 2000-2007 alone, tourism
revenues rose from US$ 113 million to over US$ 400 million.[16]
The money collected for and in connection with
wildlife in Uganda is deposited in a Wildlife Fund that is established under
Section 68(1) of the Act.
As a way of giving back to the host communities, the
Act provides for a revenue sharing mechanism under Section 69(4), which states
that, ‘The board [of Trustees] shall ... pay 20 percent of the park entry fees
collected from a wildlife protected area to the local government of the area
surrounding the wildlife protected area from which the fees were collected.’
This money is meant to facilitate and enhance socio-economic development of the
areas around wildlife protected areas, through growth, employment and
prosperity opportunities.
The money is part of the derivative benefits, which
wildlife neighbouring areas enjoy. It is reported that, ‘Over 600,000 Ugandans living
in parishes surrounding national parks have benefited from projects supported
by revenue sharing funds accruing from tourism. A total of US$1.7 million has
been collected since 2000, of which, US$896,000 has been disbursed.’[17]
There is concern though, that ‘This is a very small
portion of the tourism revenue generated by UWA and it has not translated into
meaningful benefits for the communities that bear the cost of residing adjacent
to the protected areas or for the district local governments that host them.’[18]
3.
Conclusion
Uganda’s
wildlife law particularly, The Wild Life
Act, has gone to great lengths to ensure the local community rights, in its
community rights notion. Although there are still challenges especially, in
implementation, it is hoped that with enhanced collaboration between government and
its agencies like Uganda Wildlife Authority on the one hand, and communities on
the other, there will be great improvements in the future.
Notes and References
[1] NEMA, MWE & MTTI, Building a Foundation for
Sustainable Wildlife Trade in Uganda a Review of the National Wildlife Trade
Policies in Support of the Convention on International Trade in Endangered
Species of Fauna and Flora (2008), at 1.
[2] Ibid.
[3] Chapter 200, Laws of Uganda (Revised Edition)
2000.
[4] R. Kaggwa, R. Hogan & B. Hall (eds), ‘Enhancing Wildlife’s Contribution
to Growth, Employment and Prosperity’ (2009), at 3.
[5] According to R. Kaggwa, R. Hogan & B. Hall (eds), ibid., at 28, ‘Wildlife has contributed to environmental education
at the primary, secondary and tertiary school levels. A number of wildlife
protected areas operate education centres (e.g. LMNP, MENP, QENP, MFNP), most
of which run community education programmes.’
[6] Yakobo Moyini,
Jacob Manyindo & Irene
Makumbi,
‘Sharing Natural Resources Revenue: Towards Natural Resource
Derivation Funds for Uganda
(2006), at 17.
[7] R. Kaggwa, R. Hogan & B. Hall (eds), supra note 4, at 5.
[8] Mugyenyi Onesmus, ‘GIFTED
BY NATURE,
DISPOSSESSED BY PARLIAMENT: The Plight of Mpungu
Community in Kanungu District’ (2006) at 1.
[9] R. Kaggwa, R. Hogan & B. Hall (eds), supra note 4, at
8.
[10] Ibid., at 11.
[11] Chapter 198, Laws of Uganda (Revised Edition)
2000.
[12] 1964 Revision, Cap. 227.
[13] Chapter 146, Laws of Uganda (Revised Edition)
2000.
[14] R. Kaggwa, R. Hogan & B. Hall (eds), supra note 4, at 23.
[15] R. Kaggwa, R. Hogan & B. Hall (eds), supra note 4, at iv. This report sadly notes that, ‘25 percent of
wildlife has become extinct over the decades.’ Ibid., at vii.
[16] Ibid., at viii.
[17] Ibid., at viii.
[18] Yakobo Moyini,
Jacob Manyindo & Irene
Makumbi, supra note 2, at 9.
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