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.
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Notes
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.
May and Daly (2015), p. 88.
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.
Collins (2017), p. 323.
Collins (2017), p. 312.
May and Daly (2017), p. 5.
Other challenges could relate to identifying the right defendants or fashioning appropriate remedies. See generally May and Daly (2017), pp. 5–6.
May and Daly (2017), p. 6.
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.
Collins (2017), p. 311.
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.
ELC Suit no 825 of 2012, [2014] eKLR.
As will become evident, many of the listed duties and roles are interrelated.
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.
Dow v. Attorney-General, (1992) 103 I.L.R. at 173.
Slaughter (1994), p. 101.
Slaughter (2003), p. 192.
Article 39.
Section 24.
Article 42.
Section 73.
HC. Misc. Appl. No. 39 of 2001.
See page 5.
Notice was required to be given to the Attorney General and NEMA Uganda.
Tanzanian Civil Suit No. 5 of 1993 (unreported).
Page 9.
Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR 115.
2005 [HCSA 7653/03].
May and Daly (2015), p. 4–5.
McEldowney (2002), p. 142.
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.
IUCN World Declaration on the Environmental Rule of Law, 2016.
UNEP (2019), p. 1.
Boyd (2011), p. 61.
Soyapi (2019), p. 154.
UNEP (2019), p. 2.
UNEP (2019), p. 2.
For a discussion of Kenya’s Environment and Land Court, see discussion in Soyapi (2019).
UNEP (2019), p. 8. Own emphasis.
Talmadge (1999), p. 695.
S 166 of the Constitution of South Africa.
10 of 2013.
Preston (2014), p. 370.
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.
Manne (1998), p. 14.
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.
Cox (1996), p. 567.
Talmadge (1999), p. 701. Obviously, a great many issues might be dismissed, but such dismissal is rarely outright.
Talmadge (1999), p. 701.
Larkins (1996), p. 606.
Friends of Lake Turkana Trust v Attorney General & 2 others ELC Suit no 825 of 2012, [2014] eKLR.
Page 6.
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.
Page 2.
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.
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.”.
Page 5.
Page 8.
Page 14.
Page 16.
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).
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).
See Kotzé and Du Plessis (2010), p. 176.
Farber (1997), p. 549.
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.
Wald (1992), p. 520.
Stevens (1985), p. 437.
Maathai v Kenya Times Media Trust Ltd HCCS 5403 [1989] eKLR.
Page 3.
Page 4.
Bosek (2014), p. 502.
Bosek (2014), p. 502.
The Environmental Action Network Ltd (TEAN) v British American Tobacco Ltd Misc. Application No. 70/2002 (High Court of Uganda).
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—
-
(a)
anyone acting in their own interest;
-
(b)
anyone acting on behalf of another person who cannot act in their own name;
-
(c)
anyone acting as a member of, or in the interest of, a group or class of persons;
-
(d)
anyone acting in the public interest; and
-
(e)
an association acting in the interest of its members.
-
(a)
-
Page 5.
Page 5.
See page 6.
(2001) AHRLR 60 (ACHPR 2001).
Para 1.
Para 1.
Para 2–6.
Para 52.
Para 71.
Para 52.
Pare 52.
Pare 53.
Para 53.
For a general commentary on the case, see Van der Linde and Louw (2003), pp. 167–187.
May and Daly (2017), p. 10.
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.”.
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.”
Soyapi (2019), p. 154.
Misc. Cause No. 0100 of 2004.
See page 7.
See page 8.
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”.
See page 16.
See page 21.
20 June 2014, EACJ First Instance Division, Ref. No. 9 of 2010.
Para 5.
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.
Para 11.
2006.
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”.
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.
Para 22.
Para 78.
Para 86.
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.
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.
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).
Boyd (2011), p. 72.
May and Daly (2015), p. 152.
Misc. Application No. 230/2001 (High Court of Uganda).
See page 1.
See page 3.
Environment and Land No. 273 of 2013 eKLR.
Para 1.
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.
(Misc. Cause No. 43 of 2013) [2014] UGHCCD 179 (21 October 2014).
See page 6.
See page 2.
1999 2 SA 709 (SCA).
Para 20.
(03/16337) [2004] ZAGPHC 38.
The Gauteng Provincial Department of Agriculture, Conservation, Environment and Land Affairs (environmental authority).
Page 25.
Page 36.
Page 46.
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.
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.
For a discussion of some of these remedies, see the discussion in May and Daly (2015), pp. 152–169.
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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)
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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
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DOI: https://doi.org/10.1007/s40803-019-00128-9