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Land probe: NFA boss admits illegal activity in Gulu reserve

On Tuesday, the Justice Catherine Bamugemereire-led commission of inquiry into land matters toured the boundaries of Gulu central forest reserve. The reserve has suffered severe encroachment by private entities, including Gulu University.

The executive director of the National Forestry Authority (NFA), Michael Mugisa, appeared before the commission on Wednesday to address the Gulu forest question.

Mugisa struggled for answers in the face of unrelenting interrogation by lead counsel, Ebert Byenkya. ALI TWAHA brings you an abridged account of the proceedings:-         

Byenkya: State your name for the record please.
Mugisa: Michael Mugisa.  
Byenya: Where do you live?
Mugisa: In Butabika.
Byenkya: How old are you?
Mugisa: 51 years old.
Byenkya: You have been invited here about Gulu central forest reserve and possibly about Abili. Are you aware of the central reserve?
Mugisa: Yes, I’m aware. It’s among the gazetted central forest reserves.

Michael Mugisa, executive director of NFA

Byenkya: Can you tell us when Gulu central forest reserve and Abili were established?
Mugisa: Abili was gazetted in 1968 under statutory instrument 176 and it is five hectares. Gulu was gazetted under legal notice 41 of 1948 and it is 93 hectares.
Byenkya: I see the declaration order of 1998 under sections four and five of the Forest Act. What is the significance of that?  
Mugisa: The latest instrument declaring forest reserves is 1998.
Byenkya: And does that include Gulu?
Mugisa: Yes, my lord. It includes Gulu and Abili.
Byenkya: So, your testimony is that this is the latest one?
Mugisa: Yes, my lord. There has been no amendment at all.
Byenkya: Just tell us the process for degazetting a forest reserve.
Mugisa: The law provides for change of land use when a recipient or applicant expresses interest…

Byenkya: No. I don’t want much detail. I just want the basic principles. Who has the powers to amend and cause a forest reserve to cease being a forest reserve?
Mugisa: It’s the parliament by a resolution.
Byenkya: In respect of the Gulu central forest reserve, is there any parliamentary resolution?    
Mugisa: My lord, there is no parliamentary resolution to that effect.
Byenkya: It would be your testimony that Gulu central reserve continues to be a central forest reserve?
Mugisa: Yes, my lord.

Byenkya: We visited the Gulu central reserve forest and we were able to establish substantial encroachment on the reserve. Among the things we established is that there were a number of permanent buildings. For instance, there is a building under construction, which belongs to Gulu University.  There is also a hostel, which belongs to Green Park Limited. The question for you is, how did this happen in a central forest reserve?

Mugisa: If I can give a brief background. Around 2006, the NFA permitted Gulu University to establish a faculty of medicine…
Byenkya: Since you have talked about permitting, I want you to let us know under what provision of the law did NFA use to permit Gulu University to erect a faculty of medicine in a central forest reserve.
Mugisa: There are sections in the law, which permit activities in the forest.
Byenkya: But they are several provisions in the law. I have seen a section which permits forest activity and I have not yet seen one which could allow the creation of a university faculty. Licensed activities are under what section?     
Mugisa: I may have to refer to the law to be very clear.

Byenkya: Ok, you may use mine. Can you see section 32, it talks about prohibited activities. I will read the first part and you tell me your understanding. It reads as follows: “No person shall except for forestry purposes and in accordance with the management plan or in accordance with the license under this Act in a forest reserve or community forest erect a building or enclosure.”
I’m just wondering whether this provision was taken into account before you authorised them to enter the forest reserve.   

Mugisa: The provision is clear only for forest purposes but by that time in 2006, I think some circumstances warranted the authorities then to have an understanding...
Byenkya: Mr Mugisa, we are talking only about NFA, and not any other authorities. This is a law that governs your activities… Forestry means the management and conservation of forests and trees, and it includes the management of land that does not have trees which forms part of the reserve dedicated to forests. Allocation of land for purposes of a university is not a matter provided for under the Forest Act. It is not a matter which the law entitles you to indulge in.

Mugisa: It’s true for forest purposes. Bu I was trying to explain that by that time, 2006, circumstances that led to the extension of a permit for one year were, that the public university should be in a certain area … and the proposal for degazetting the area, discussions were held…
Byenkya: But the first thing I asked you is who has the power to degazette?
Mugisa: The parliament of Uganda.
Byenkya: Yes. Has that happened or it hasn’t happened?
Mugisa: It hasn’t.
Byenkya: So, whatever proposals that may have existed, under what power may NFA act before parliament had exercised its authority?
Mugisa: The information I have is that in 2006, there was an authorised permit for the university to occupy and establish a faculty of medicine.
Byenkya: The question is, was that lawful or unlawful?

Mugisa: It is unlawful.
Byenkya: While it is unlawful, I can see that the NFA not only granted a so-called temporary license for miscellaneous activities but it actually proceeded to make money out of it by charging the faculty an amount of Shs 36 million. So, NFA is making money out of unlawful activities…
Mugisa: My lord, among the special conditions and the terms was to pay ground rent…and I want to clarify that this license has not been renewed.
Byenkya: It’s true you may not have renewed the license but the problem is you have left us with an unlawful building in the forest reserve.
Mugisa: It is true, my lord but I tried to build from the circumstances and negotiations done by authorities here and those from the forestry department.
Byenkya: When was this license issued?
Mugisa: 2006.

Byenkya: Were you the executive director at that time?
Mugisa: I was not. I joined in 2012.
Byenkya: Who was the executive director?
Mugisa: I think it was Jacob. I can find out.
Byenkya: I’m looking at the so-called special conditions of the license which NFA gave to Gulu University. The first condition was that it should be a temporary license valid for a period of one year. Has this license been renewed annually since that time?

Mugisa: My lord, it has not been renewed since that time.
Byenkya: So, essentially this temporary license expired one year after November 7, 2007.
Mugisa: Yes, my lord, it expired.
Byenkya: But is the faculty of medicine in existence in the central reserve despite the expiry of the license?
Mugisa: Yes, the establishments are there, including a hostel and construction of a faculty of medicine [is underway].
Byenkya: So, what is the status then because you are sitting there as the executive director and there is illegal activity on your land that persists.

Mugisa: My lord when I joined the office, I looked at an invitation in a public gazette for municipalities in different parts to fulfill the conditions for the gazettement to enable the minister proceed with the process.  Among them was Gulu and the area earmarked was the one where the university is seated.

We initiated some appraisal in these areas. We made a report and prepared a cabinet draft memorandum to which comments were given in 2016, and today we are revising that memorandum in view of resubmitting to address some of these distortions in some of the forests.   

Byenkya: You are actively engaged in the process of trying to have Gulu central forest degazetted. Is that what you are saying?
Mugisa: The continuation of the process to degazette.     
Byenkya: So, NFA is a leader in the effort to degazette the central forest reserve. Is that what I hear from you?
Mugisa: No. We receive requests and they are evaluated. The custodian and ministry work together.
Byenkya: Did you become aware that in this process of degazettement, there was an environmental impact assessment (EIA)?
Mugisa: My lord, it’s one of the conditions of the law.
Byenkya: I want to understand whether you understand what sort of EIA is required under the law?
Mugisa: In central forest reserves, any activity that is significant enough to impact on the ecosystems must have an EIA.

Justice Catherine Bamugemereire at the Gulu University hostel that was built in a forest reserve

Byenkya: No. I want you to talk about the degazetting process. Under the law, section eight, when is an EIA required?
Mugisa: An EIA is required when there is a request for degazettement of both the land you want to remove and the land you want to acquire for forest purposes.
Byenkya: Are you in possession of an EIA replacement land?
Mugisa: My lord, the municipal council submitted an EIA for the proposed exchange.
Byenkya: I have not seen one. And that is why I’m asking whether you are in possession. We have seen one for the land in Gulu central reserve and the conditions for that which have not been complied with. But what we have not seen is the EIA for the land in Nwoya.
Mugisa: I have not seen it but I can cross check with our offices and submit the EIA.

Byenkya: I would be interested to know if it exists. Have you seen the title?
Mugisa: I have seen the title but I have not carried the report of the degazettement because it is something ongoing.
Byenkya: The title we saw was for five years running from 2002 and expired in 2007. Are you aware of that as you pursue the process of degazetting the land?
Mugisa: My lord, as we do the revision of the cabinet memorandum, these are the issues and further consultations that have been recommended by the cabinet. We have not yet done it but we shall find out.
Byenkya: Incidentally, that very same title which was issued to Gulu municipal council had a user restriction. Says; “The user should be restricted to farming.” In your opinion, would such land meet the requirements of the law in section eight?
Mugisa: My lord, the land to be provided in the law, it [section] says that that land should have the capacity to be forested in the period of five years.

Byenkya: So, my question is, would that land which has a user restriction to farming, meet the standards of the law? I’m asking because you are very happy to pursue degazettement but I’m wondering whether you are paying attention to these conditions?
Mugisa: My lord, it’s not [about me] being very happy but responding to the demands within the society.

Byenkya: Whenever we have encountered you, Mr Mugisa, the conversation has been whether you understand your role and responsibilities. And this is yet another example. Now, this is what the law requires: “The minister shall before amending an order, declare the central forest reserve compliant with the procedure and if it results in the removal of the forest reserve, an area at least equivalent in size to the reserve shall be simultaneously declared a forest reserve.”

Obviously, the land which must be declared must be for the purposes of the forest reserve. So, the first condition you see is that land has been obtained and it’s going to be possible to be used for a forest reserve.

Mugisa: It is true and it is incumbent on the recipient.
Byenkya: It is incumbent upon you because it is your responsibility to conserve forest reserves.
Mugisa: The one who applies is the recipient.
Byenkya: No, Mr Mugisa. Who is responsible for central forest reserves?
Mugisa: NFA.
Byenkya: Exactly, so when they say they are going to declare an area a central forest reserve, who is the recipient?
Mugisa: We receive it but we look at the suitability of the land.
Byenkya: You see, your answers go to whether you understand your roles.
Mugisa: I understand it very much.

Byenkya: When people hear you say that you are responsible for forest reserves but you are not the recipient of an area being declared, don’t you think it raises questions as to whether you understand your role?
Mugisa: It must have been a mix of words but the recipient is the government. And then the applicant is the one who provides it and we verify the suitability of the land.
Byenkya: Apart from size, there is another condition which is: “Before a new area is declared a central forest reserve in terms of subsection two, the EIA must find the area to be of equivalent or greater environmental value.”
So, when you come here and say that you don’t know and that you don’t have a copy of the EIA for the new area [in Nwoya], what are we to make of the way you are running Gulu central forest reserve?

Mugisa: My lord, we have a matrix and criteria and among them was an EIA, suitability, size and everything. We are doing the work, we had the first draft…
Byenkya: If you are doing the work and you have gone to the draft, by now you should know whether there is an EIA or not and you should have a copy with you by the time you come to testify here.
Mugisa: If allowed, I will make submissions of the documents in that regard.
Byenkya: Alright. Let us look at the conditions of your allocation of land to Gulu University. Did it allow the university to sub-license anybody?
Mugisa: Transferring of interest to my understanding is not allowed without consent of the authority.

Byenkya: I note two conditions. Condition 13 says: “Not to sub-license or transfer the rights hereby granted for the land or any part.” And then condition 14 says: “Not to assign or transfer the benefits enjoyed under this license to a third party.” The reason I’m asking is because there is a hostel. It seems to have been built by a company called Green Parks Limited.  Are you aware of that company?

Mugisa: My lord, I’m aware of the hostel. Initially, our knowledge disclosed that it is Gulu University building the hostel but in the course of duty, we came across an understanding between Gulu and the company, Green Parks. We are not party to that understanding and the debate has been possibly, that the university mentions a public-private partnership which, I think, in their wisdom, they discussed.  

Byenkya: I have been reading from your license. Incidentally, I want to read to you condition 5. It says: “Actual construction works will begin when the EIA has been approved in accordance with the National Environment Management Authority.” Have you ever seen any NEMA legislation that approved construction in the central reserve?
Mugisa: In my records, the only EIA we have is on the degazettement.
Byenkya: We have seen the EIA for Gulu municipal council for the proposed degazettement. There were certain conditions there and that’s why I wanted to know whether NFA had seen this report because you seem to proceed very happily. The first thing that was a special condition of NEMA was that the resolution had to be made through parliament. Did NFA see or not see this EIA?      
Mugisa: It’s true they are there but the process has not gone through the due process.
Byenkya: When you see that process, does it ever occur to you that that process might fail?
Mugisa: If we submit the cabinet memo and they decide that we don’t proceed, we shall not.               
Byenkya: So, why would NFA act as if parliament or cabinet is a mere rubberstamp? You seem to assume this is a done deal?
Mugisa: It’s not that it is a done deal. It needs a resolution from parliament.
Byenkya: Before we go to the resolutions, what was your responsibility as NFA? Was it to pursue degazettement or conserve the forest?
Mugisa: It’s not NFA pursuing degazettement but the ministry of water and environment.

alitwaha@observer.ug

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