Skip to main content

Advertisement

Log in

A Multijurisdictional Assessment of the Judiciary’s Role in Advancing Environmental Protection in Africa

  • Article
  • Published:
Hague Journal on the Rule of Law Aims and scope Submit manuscript

Abstract

The link between environmental rights, environmental protection and the courts has become more prominent in recent times, with courts and judges being described as the ultimate vanguard of broad environmental rights, and the rights being described as game-changing legal tools over which judges have substantial power. However, given the infancy of environmental rights and the slow rate at which they have been developing generally (and in Africa in particular), scholars have observed that there is a knowledge gap with respect to the identification of the specific tasks and roles that courts have to perform when it comes to advancing environmental rights, and their overall net contribution to advancing the type of interests that environmental rights seek to promote. Because courts often have to balance the competing interests of environmental protection and development (which is acutely needed in most African states), this article seeks to identify the role courts have been playing in an effort to protect the environment solely based on a number of African case law.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. In their study of the role of the courts in new democracies, Gloppen et al. find that the role of the courts can often turn political as they must often decide on matters that affect government choices in decision making. This means that the fine line between policy and law is often breached. See Gloppen et al. (2003), p. 2.

  2. May and Daly (2015), p. 88.

  3. Insofar as environmental rights relate to the health of humans, the literature is littered with multiple variations of the term with various descriptions referring to a clean, healthy, adequate, decent, satisfactory, safe or viable environment. See generally Turner (2014), p. 29; Leib (2011), p. 91; Nickel (1993), p. 281; Hodkova (1992), p. 79; Collins (2007), pp. 136–137; Boyle (2012), p. 613; May and Daly (2015), p. 64. However, as a matter of generality, it appears that “environmental rights” is often used as an umbrella term for these varied descriptions, including between substantive and procedural environmental rights—the distinction of which is beyond the scope of the present discussion.

  4. Collins (2017), p. 323.

  5. Collins (2017), p. 312.

  6. May and Daly (2017), p. 5.

  7. Other challenges could relate to identifying the right defendants or fashioning appropriate remedies. See generally May and Daly (2017), pp. 5–6.

  8. May and Daly (2017), p. 6.

  9. See for instance South Africa’s Fuel Retailers Association of South Africa (Pty) Ltd v. Director-General Environmental Management Mpumalanga and Others 2007 (10) BCLR 1059 (CC); Uganda’s Asiimwe & Others v Leaf Tobacco & Commodities (U) Ltd & NEMA (Misc. Cause No. 43 of 2013) [2014] UGHCCD 179 (21 October 2014); and Kenya’s Moffat Kamau & 9 others v Aelous Kenya Limited & 9 others Constitutional Petition No. 13 of 2015 [2016] eKLR.

  10. Collins (2017), p. 311.

  11. Admittedly, there are other forums (like tribunals) that contribute to the advancement of environmental law in general, but the analysis in this piece is solely related to superior courts, because they are the most prevalent, they have original and appellate jurisdiction and they also have reported decisions which create precedent.

  12. ELC Suit no 825 of 2012, [2014] eKLR.

  13. As will become evident, many of the listed duties and roles are interrelated.

  14. Most constitutions provide for the establishment of courts, with the result that if a court is not established through or in terms of a country’s constitution, then such courts might not have the requisite authority to legitimately adjudicate issues. See Phillips et al. (2001), p. 420. Also see May and Daly (2015), p. 108.

  15. Cox (1996), p. 567; Larkins (1996), p. 606; Ferejohn (1999), p. 372; Ferejohn and Kramer (2002), p. 967.

  16. May and Daly (2017), p. 5; Larkins (1996), p. 606.

  17. Dow v. Attorney-General, (1992) 103 I.L.R. at 173.

  18. Slaughter (1994), p. 101.

  19. Slaughter (2003), p. 192.

  20. A discussion of global environmental constitutionalism is beyond the scope of this discussion. For details, see May and Daly (2015) and Kotzé (2016).

  21. Article 39.

  22. Section 24.

  23. Article 42.

  24. Section 73.

  25. HC. Misc. Appl. No. 39 of 2001.

  26. See page 5.

  27. Notice was required to be given to the Attorney General and NEMA Uganda.

  28. Tanzanian Civil Suit No. 5 of 1993 (unreported).

  29. Page 9.

  30. Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR 115.

  31. 2005 [HCSA 7653/03].

  32. Slaughter (2003), p. 202; Kotzé and Soyapi (2016), p. 99.

  33. May and Daly (2015), p. 4–5.

  34. Dicey as cited in McEldowney (2002), p. 142; Loveland (2006), p. 57; Turpin and Tomkins (2007), p. 77.

  35. McEldowney (2002), p. 142.

  36. Loveland (2006), p. 56. Also see Turpin and Tomkins (2007), p. 77, for the view that in basic terms, the rule of law has to do with government acting in accordance with and not beyond its legal powers.

  37. The preamble to the 2012 Rio + 20 Declaration on Justice, Governance and Law for Environmental Sustainability, observes that the judiciary is the guarantor of EROL. Further, the preamble to the 2016 Charter for the Global Judicial Institute for the Environment, affirms that judges play a critical role in promoting EROL.

  38. 2016, available at http://www.unep.org/environmentalgovernance/erl/iucn-world-declaration-environmental-rule-law.

  39. IUCN World Declaration on the Environmental Rule of Law, 2016.

  40. UNEP (2019), p. 1.

  41. Boyd (2011), p. 61.

  42. Soyapi (2019), p. 154.

  43. UNEP (2019), p. 2.

  44. UNEP (2019), p. 2.

  45. For a discussion of Kenya’s Environment and Land Court, see discussion in Soyapi (2019).

  46. UNEP (2019), p. 8. Own emphasis.

  47. Turpin and Tomkins (2007), p. 103; Phillips et al. (2001), p. 12.

  48. A number of scholars agree that the separation of powers doctrine owes much to the writings of Monstequieu. See generally Ervin (1970), p. 109 and Phillips et al. (2001), p. 12.

  49. Talmadge (1999), p. 695.

  50. S 166 of the Constitution of South Africa.

  51. 10 of 2013.

  52. Kaufman (1980), p. 689. Also see Phillips et al. (2001), p. 12, who note that a complete separation of powers between the three distinct branches would bring government to a standstill.

  53. Preston (2014), p. 370.

  54. While it is beyond the scope of this brief discussion, an interesting question—which is difficult to answer—is whether underfunding the judiciary could serve as some form of making the judiciary dependent on the legislature or executive? This could be particularly worrying in countries where the rule of law is weak.

  55. Manne (1998), p. 14.

  56. See article 144(2) of the Constitution of Uganda, article 168(1) of the Constitution of Kenya, s 177(1) of the Constitution on South Africa, and s 186 of the Constitution of Zimbabwe.

  57. Ervin (1970), p. 121; Pikis (2012), p. 104.

  58. Cox (1996), p. 567.

  59. Talmadge (1999), p. 701. Obviously, a great many issues might be dismissed, but such dismissal is rarely outright.

  60. Talmadge (1999), p. 701.

  61. Larkins (1996), p. 606.

  62. Friends of Lake Turkana Trust v Attorney General & 2 others ELC Suit no 825 of 2012, [2014] eKLR.

  63. Page 6.

  64. Page 2. They essentially challenged the government’s decision to develop parts of Lake Turkana in pursuance of their contractual agreements with the government of Ethiopia.

  65. Page 2.

  66. Page 3. It seemed that the impact assessment that had been undertaken was done secretly and was tailored to suit the government’s proposed plans.

  67. Article 35 reads as follows: (1) Every citizen has the right of access to—(a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom. (2)… (3) The State shall publish and publicise any important information affecting the nation.”.

  68. Page 5.

  69. Page 8.

  70. Page 14.

  71. Page 16.

  72. See for example the South African case of Fuel Retailers Association of South Africa (Pty) Ltd v. Director-General Environmental Management Mpumalanga and Others 2007 (10) BCLR 1059 (CC).

  73. See for example the Ugandan case of National Association of Professional Environmentalists (NAPE) v AES Nile Power Limited MISC. Cause No. 268 of 1999 (High Court of Uganda).

  74. See Kotzé and Du Plessis (2010), p. 176.

  75. Farber (1997), p. 549.

  76. WSSD: Johannesburg Principles on the Role of Law and Sustainable Development, 2002, Department of Foreign Affairs, Republic of South Africa available at http://www.dirco.gov.za/docs/2002/wssd0828a.htm. Accessed 12 June 2017.

  77. Wald (1992), p. 520.

  78. Stevens (1985), p. 437.

  79. Maathai v Kenya Times Media Trust Ltd HCCS 5403 [1989] eKLR.

  80. Page 3.

  81. Page 4.

  82. Akech (2006), p. 23; Kameri-Mbote (2009), p. 467.

  83. Bosek (2014), p. 502.

  84. Bosek (2014), p. 502.

  85. The Environmental Action Network Ltd (TEAN) v British American Tobacco Ltd Misc. Application No. 70/2002 (High Court of Uganda).

  86. S 38 reads as follows:

    • 38 Enforcement of rights.

    • Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are—

      1. (a)

        anyone acting in their own interest;

      2. (b)

        anyone acting on behalf of another person who cannot act in their own name;

      3. (c)

        anyone acting as a member of, or in the interest of, a group or class of persons;

      4. (d)

        anyone acting in the public interest; and

      5. (e)

        an association acting in the interest of its members.

  87. Page 5.

  88. Page 5.

  89. See page 6.

  90. (2001) AHRLR 60 (ACHPR 2001).

  91. Para 1.

  92. Para 1.

  93. Para 2–6.

  94. Para 52.

  95. Para 71.

  96. Hansungule 2009 “African courts and the African Commission” 250–251; Boyd (2011), p. 104.

  97. Para 52.

  98. Pare 52.

  99. Pare 53.

  100. Para 53.

  101. For a general commentary on the case, see Van der Linde and Louw (2003), pp. 167–187.

  102. May and Daly (2017), p. 10.

  103. Collins (2017), p. 320. To be sure, Somers (1990), p. 193 argues that “[i]n several instances the courts have transformed the existing law through creative interpretation.”

  104. See for example Kotzé and Du Plessis (2010), p. 168, for the view that “[e]nvironmental rights jurisprudence can … indeed also deepen the domestic environmental law discourse and indirectly contribute to the design of environmental law and policy so that it is consistent with the values espoused in the Constitution, as well as the environmental right itself.”.

  105. Wald (1992), p. 521; Feris (2008), p. 37.

  106. Kotzé and Du Plessis (2010), p. 168, observe the following, “environmental rights jurisprudence is necessary to establish a more definite standard against which to judge the environmentally relevant behaviour and activities of, for example, organs of state.”

  107. Loveland (2006), p. 73. Justice Wald thus concludes: “[t]he prospect of judicial review may be a healthy deterrent to agency politicalization or bureaucratic insensitivity.” Wald (1992), p. 534.

  108. Kotzé (2016), p. 161; Magraw (2015), p. 277; Nemesio (2015), p. 325.

  109. Soyapi (2019), p. 154.

  110. Misc. Cause No. 0100 of 2004.

  111. See page 7.

  112. See page 8.

  113. The article reads as follows: “… the Government or a local government as determined by Parliament by law shall hold in trust for the people and protect natural lakes, rivers, wetlands, forest reserves, game reserves, national parks and any land to be reserved for ecological and touristic purposes for the common good of all citizens”.

  114. See page 16.

  115. See page 21.

  116. 20 June 2014, EACJ First Instance Division, Ref. No. 9 of 2010.

  117. Para 5.

  118. There had initially been a small road that was used by tourists and by the Serengeti Parks management. The proposed road would be permanent and would be opened up to the general public.

  119. Para 11.

  120. 2006.

  121. The specific article reads “the Community shall ensure: … (c) the promotion of sustainable utilisation of the natural resources of the Partner States and the taking of measures that would effectively protect the natural environment of the Partner States”.

  122. Some of the arguments made were that a road already existed in the Serengeti, that in the event it is held such road does not exist, the proposed road would not be the first of its kind in a national park and that a reputable consultant had given advice on how to reduce the negative impacts that would be the consequence of the road construction. Para 19.

  123. Para 22.

  124. Para 78.

  125. Para 86.

  126. Para 86. A subsequent appeal to the Appellate Division of the EACJ by the Attorney General of Tanzania was dismissed. See The Attorney General of the United Republic of Tanzania v African Network for Animal Welfare, 29 July 2014, EACJ Appellate Division, Appeal No. 3 of 2014.

  127. Article I of the Rio + 20 Declaration on Justice, Governance and Law for Environmental Sustainability, 2012; WSSD: Johannesburg Principles on the Role of Law and Sustainable Development, 2002, Department of Foreign Affairs, Republic of South Africa available at http://www.dirco.gov.za/docs/2002/wssd0828a.htm.

  128. This makes the courts agents of social change since they are the guardians of rights. See generally the edited collection Gargarella, Domingo and Roux (2006).

  129. Boyd (2011), p. 72.

  130. Pikis (2012), p. 103. Justice Pikis further observes that “as the law was meant to be the agent of justice, so the judiciary was conceived as the guardian of justice.” Pikis (2012), p. 103.

  131. May and Daly (2015), p. 152.

  132. Misc. Application No. 230/2001 (High Court of Uganda).

  133. See page 1.

  134. See page 3.

  135. Environment and Land No. 273 of 2013 eKLR.

  136. Para 1.

  137. Para 50. This is comparable to the African Network case discussed above, where the EACJ noted that the environment is rarely fully repaired once it is damaged.

  138. (Misc. Cause No. 43 of 2013) [2014] UGHCCD 179 (21 October 2014).

  139. See page 6.

  140. See page 2.

  141. 1999 2 SA 709 (SCA).

  142. Para 20.

  143. (03/16337) [2004] ZAGPHC 38.

  144. The Gauteng Provincial Department of Agriculture, Conservation, Environment and Land Affairs (environmental authority).

  145. Page 25.

  146. Page 36.

  147. Page 46.

  148. May and Daly (2015), p. 149. After all, we can never avoid pollution. The world must always accept and deal with some form of pollution.

  149. With other rights, for instance the right to housing, courts could order that governments provide housing and could even indicate when and how. This could be difficult in cases where a river is polluted, or where people have used that water and contracted some diseases.

  150. For a discussion of some of these remedies, see the discussion in May and Daly (2015), pp. 152–169.

References

  • Akech MJM (2006) The environment and land reports. DFID and KLR

  • Bosek JK (2014) Implementing environmental rights in Kenya’s new constitutional order: Prospects and potential challenges. Afr Hum Rights Law J 14:489–508

    Google Scholar 

  • Boyd DR (2011) The environmental rights revolution: a global study of constitutions, human rights, and the environment. UBC Press, Vancouver

    Google Scholar 

  • Boyle A (2012) Human rights and the environment: where next? Eur J Int Law 23(3):613–642

    Google Scholar 

  • Collins LM (2007) Are we there yet? The right to environment in international and European law. McGill Int J Sustain Dev Law Policy 3(2):119–153

    Google Scholar 

  • Collins L (2017) Judging the anthropocene: transformative adjudication in the anthropocene epoch. In: Kotzé LJ (ed) Environmental law and governance for the Anthropocene. Hart, Oxford

    Google Scholar 

  • Cox A (1996) The independence of the judiciary: history and purposes. U Dayton L Rev 21:565

    Google Scholar 

  • Ervin SJ Jr (1970) Separation of powers: judicial independence. Law Contemp Prob 35:108–127

    Google Scholar 

  • Farber DA (1997) Is the Supreme Court irrelevant? Reflections on the judicial role in environmental law. Minn Law Rev 81:547–569

    Google Scholar 

  • Ferejohn J (1999) Independent judges, dependent judiciary: explaining judicial independence. South Calif Law Rev 72:353–384

    Google Scholar 

  • Ferejohn J, Kramer LD (2002) Independent Judges, dependent Judiciary: institutionalizing judicial restraint. N Y Univ Law Rev 77:962–1038

    Google Scholar 

  • Feris L (2008) Constitutional environmental rights: an under-utilised resource. S Afr J Hum Rights 24:29–49

    Google Scholar 

  • Gloppen S, Gargarella R, Skaar E (2003) Introduction: the accountability function of the courts in new democracies. Democratization 10(3):1–6

    Google Scholar 

  • Hansungule M (2009) African courts and the African commission on human and peoples rights. In: Bosl A, Diescho J (eds) Human rights in Africa: legal perspectives on their protection and promotion. Konrad Adenauer Foundation, Windhoek

    Google Scholar 

  • Hodkova I (1992) Is there a right to a healthy environment in the international legal order? Conn J Int Law 7:65–80

    Google Scholar 

  • Kameri-Mbote P (2009) Kenya. In: Kotzé LJ, Paterson AR (eds) The role of the judiciary in environmental governance: comparative perspectives. Kluwer Law International, Alphen aan den Rijn, pp 451–478

    Google Scholar 

  • Kaufman IR (1980) The essence of judicial independence. Columbia Law Rev 80:671

    Google Scholar 

  • Kotzé LJ (2016) Global environmental constitutionalism in the anthropocene. Hart, Oxford

    Google Scholar 

  • Kotzé LJ, du Plessis AA (2010) Some brief observations on fifteen years of foster environmental rights jurisprudence in South Africa. J Court Innov 3(1):157–176

    Google Scholar 

  • Kotzé LJ, Soyapi CB (2016) Transnational environmental law: the birth of a contemporary analytical perspective. In: Fisher D (ed) Research handbook on fundamental concepts of environmental law. Edward Elgar, Cheltenham, pp 82–110

    Google Scholar 

  • Larkins CM (1996) Judicial independence and democratization: a theoretical and conceptual analysis. Am J Comp Law 44(4):605–626

    Google Scholar 

  • Leib LH (2011) Human rights and the environment: philosophical, theoretical and legal perspectives. Martinus Nijhoff, Leiden

    Google Scholar 

  • Loveland I (2006) Constitutional law, administrative law and human rights: a critical introduction. Oxford University Press, Oxford

    Google Scholar 

  • Manne HG (1998) The judiciary and free markets. Harv J Law Public Policy 21(1):11–37

    Google Scholar 

  • May JR, Daly E (2015) Global environmental constitutionalism. Cambridge University Press, New York

    Google Scholar 

  • May JR, Daly E (2017) Judicial handbook on environmental constitutionalism. UNEP, Nairobi

    Google Scholar 

  • McEldowney JF (2002) Public law. Sweet & Maxwell, London

    Google Scholar 

  • Nemesio I (2015) Strengthening environmental rule of law: enforcement, combatting corruption, and encouraging citizen suits. Georget Int Environ Law Rev 27:321–342

    Google Scholar 

  • Nickel JW (1993) The human right to a safe environment: philosophical perspectives on its scope and justification. Yale J Int Law 18:281–295

    Google Scholar 

  • Phillips HO, Jackson P, Leopold P (2001) Constitutional and administrative law, 8th edn. Sweet & Maxwell, London

    Google Scholar 

  • Pikis GM (2012) Justice and the judiciary. Martinus Nijhoff Publishers, Leiden

    Google Scholar 

  • Preston B (2014) Characteristics of successful environmental courts and tribunals. J Environ Law 26(1):365–393

    Google Scholar 

  • Slaughter A (1994) A typology of transjudicial communication. Univ Richmond Law Rev 29:99–137

    Google Scholar 

  • Slaughter A (2003) A global community of courts. Harv Int Law J 44:191–219

    Google Scholar 

  • Somers E (1990) The role of the courts in the enforcement of environmental rules. Int J Estuar Coast Law 5:193–200

    Google Scholar 

  • Soyapi CB (2019) Environmental protection in Kenya’s environment and land court. J Environ Law 31:151–161

    Google Scholar 

  • Stevens JP (1985) Judicial restraint. San Diego Law Rev 22:437–452

    Google Scholar 

  • Talmadge PA (1999) Understanding the limits of power: judicial restraint in general jurisdiction court systems. Seattle U L Rev 22:695

    Google Scholar 

  • Turner SJ (2014) A global environmental right. Routledge, Oxon

    Google Scholar 

  • Turpin C, Tomkins A (2007) British government and the constitution, 6th edn. Cambridge University Press, Cambridge

    Google Scholar 

  • Van der Linde M, Louw L (2003) Considering the interpretation and implementation of article 24 of the African Charter on Human and Peoples’ Rights in light of the SERAC Communication. Afr Hum Rights Law J 3:167–187

    Google Scholar 

  • Wald PM (1992) The role of the judiciary in environmental protection. Bellagio Confer Environ Affairs Law Rev 19(3):519–546

    Google Scholar 

Regional case law

  • African Network for Animal Welfare v. The Attorney General of the United Republic of Tanzania 20 June 2014, EACJ First Instance Division, Ref. No. 9 of 2010

  • Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (2001) AHRLR 60 (ACHPR 2001)

Domestic case law

  • Advocates Coalition for Development and Environment v Attorney General and NEMA Misc. Cause No. 0100 of 2004

  • Asiimwe & Others v Leaf Tobacco & Commodities (U) Ltd & NEMA (Misc. Cause No. 43 of 2013) [2014] UGHCCD 179 (21 October 2014)

  • Asiimwe & Others v Leaf Tobacco & Commodities (U) Ltd & NEMA (Misc. Cause No. 43 of 2013) [2014] UGHCCD 179 (21 October 2014)

  • BP Southern Africa (Pty) Ltd v. MEC for Agriculture, Conservation and Land Affairs (BP Southern Africa) 2004 5 SA 124 (W)

  • British American Tobacco Limited v. The Environmental Action Network Ltd. (BAT vs TEAN) Civil Appl. no. 27/2003, High Court of Uganda at Kampala (2003)

  • Director: Mineral Development, Gauteng Region, and Another v Save the Vaal Environment and Others 1999 2 SA 709 (SCA)

  • Dow v. Attorney-General, (1992) 103 I.L.R.

  • Friends of Lake Turkana Trust v Attorney General & 2 others ELC Suit no 825 of 2012, [2014] eKLR

  • Fuel Retailers Association of South Africa (Pty) Ltd v. Director-General Environmental Management Mpumalanga and Others 2007 (10) BCLR 1059 (CC)

  • Kenya’s Moffat Kamau & 9 others v Aelous Kenya Limited & 9 others Constitutional Petition No.13 of 2015 [2016] eKLR.

  • Maathai v Kenya Times Media Trust Ltd HCCS 5403 [1989] eKLR

  • National Association of Professional Environmentalists (NAPE) v AES Nile Power Limited MISC. Cause No. 268 of 1999 (High Court of Uganda)

  • Siraji Waiswa v Kakira Sugar Works Ltd. Misc. Application No. 230/2001 (High Court of Uganda)

  • The Attorney General of the United Republic of Tanzania v African Network for Animal Welfare, 29 July 2014, EACJ Appellate Division, Appeal No.3 of 2014

  • The Environmental Action Network Ltd (TEAN) v British American Tobacco Ltd Misc. Application No. 70/2002 (High Court of Uganda)

Download references

Author information

Authors and Affiliations

Authors

Corresponding author

Correspondence to Caiphas Brewsters Soyapi.

Additional information

Publisher's Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Soyapi, C.B. A Multijurisdictional Assessment of the Judiciary’s Role in Advancing Environmental Protection in Africa. Hague J Rule Law 12, 307–332 (2020). https://doi.org/10.1007/s40803-019-00128-9

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s40803-019-00128-9

Keywords

Navigation