In a timely verdict coinciding with the commencement of the 26th United Nations Climate Change Conference (COP26), in Glasgow, Scotland, the High Court in Kampala has rebuked the office of the Attorney General (AG) for attempting to distance itself from the deathtrap Kampala drainage channels, which have claimed several lives.
The AG’s office, now headed by Senior Counsel Kiryowa Kiwanuka, had claimed that it is not responsible for the actions and omissions of Kampala Capital City Authority (KCCA).
It is important to note that AG is the government’s chief legal representative and adviser, of which KCCA is a government entity supervised by the central government.
In the groundbreaking judgment dated November 1, 2021, Justice Michael Elubu ruled in favour of human rights watchdog Legal Brains Trust, in the case it filed against both KCCA and AG.
The case, filed in public interest for public safety, was prompted by the drowning of market vendor Cissy Namukasa who drowned in the Nakawa drainage channel last year on May 2.
Court also took notice of several recorded flooding incidents that have claimed lives in Kampala, on account of the open drainage channels that become invisible during heavy downpour.
“It is therefore the holding of this court that it has been established that the respondents have infringed the right to life; to protection from deprivation of property; and to a safe and clean environment of Kampala City Dwellers,” court pronounced.
Human rights advocate and activist Isaac Ssemakadde, swore an affidavit, and asked court to compel government to cover all drainage channels, on the premise that they are a death chamber.
Ssemakadde also sought sh500m compensation for the family of Namukasa.
However, it was noted that KCCA was in touch with the family’s lawyer on the modalities of compensation.
In his judgment, Justice Elubu shredded the submission by state attorney Charity Nabaasa, that the AG was not responsible for the actions of KCCA.
Elubu relied on the evidence of senior KCCA official Eng. Dr. James Semuwemba, who told court that KCCA superintends over Kampala city on behalf of the central government.
Semuwemba went a notch higher and listed the KCCA duties to include building, repairing and maintenance of drainages within Kampala City, among others.
The judge emphasised: “The KCCA Act makes the 1st respondent (KCCA) a government entity with a Minister appointed under Section 79 to oversee and supervise the KCCA. The 2nd Respondent, being the Attorney General, therefore bears liability for the actions of KCCA.”
“If indeed there has been any dereliction of duty by the 1st respondent, with regard to
maintenance of roads and drainage as alleged, then the 2nd respondent is also liable.”
Abdication of duty
Court agreed with Legal Brains Trust executive director, Ssemakadde, who stated in his affidavit that the deadly open drainages were proof of abdicated duty from KCCA and AG.
“The respondents have hitherto wrongfully commissioned roads, drainage channels, sewers, and related infrastructure with inadequate human safety protections that pose a danger to the urban dwellers and vulnerable groups like children, persons with disabilities and mental health problems,” said Ssemakadde.
Ssemakadde made reference to the elaborate Uganda Police 2018 Annual Report, which catalogued persons that had drowned in the street floods over time.
The report listed the incident of September 4, 2011, when a boda boda passenger Brenda Omuntu Katiti, a cashier at Barclays Bank Katwe, was submerged in an open water channel at Kalitunsi stage near Clock Tower in Kampala.
On November 24, 2014, Irene Nakato drowned in a secondary channel in Kawempe, was finally found.
In 2016, two unidentified bodies were retrieved from Nakivubo Channel between Electoral Commission and Sixth Street Industrial Area. Also on July 5, 2017, the body of an unidentified man was retrieved from the same place.
In September 2019, two passengers survived by a whisker, when Kampala flash floods washed away their car in Namasuba off Entebbe road.
On December 16, 2019, Police Marine Sgt Godfrey Mwondah lost his life in an ill-fated flood rescue mission.
The catalogue also documents victims electrocuted during the floods: one Sekitoleko, Jowelia Tumusiime, Agnes Naiga and daughter Lilian Nakagodwe.
KCCA unserious on fundamental human rights
Justice Elubu Court has directed the AG to brief Parliament within three (3) months from the date of judgment, on the measures taken by the government agency KCCA to seal off the death-chamber holes prominent in Kampala city.
The judge noted that KCCA was evidently unserious in upholding fundamental human rights.
KCCA had told court that it had a comprehensive drainage master plan for Kampala city.
But court noted that KCCA was being untruthful and vague, as it even failed to avail a copy of the drainage master plan.
“The sheer breadth of time of the accidents mentioned in this case shows that the urgency that the issue requires has never been addressed. The magnitude of the loss of life is staggering. The only reasonable inference to draw from that is that no such plan exists,” noted Justice Elubu.
“It is true that the respondent cannot control extreme weather events, but it has a constitutional duty to mitigate any life-threatening outcomes. As seen, there is no plan in place to show what mitigation [has been undertaken]to control the effects of the flooding. Instead the manner of response shows that the respondent has contributed to the danger from the way it manages the drainage, sewers or from the current road design.”
*2021 United Nations Climate Change Conference*
The timely judgment comes at the time when the United Nations is deliberating on climate change, the changing weather patterns, and how to confront the predatory incidents prompted by climate change.
The conference, dubbed COP26, commenced on Sunday October 31, in Glasgow, the capital of Scotland, and will run up to November 12.
In the four goals of COP26, national leaders are being tasked with instituting appropriate mechanisms to reduce emissions, mobilize funding, and boost adaptation and resilience.