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African Constitutions Key To Environmental Enforcement

July 2000

Recent controversies over rampant deforestation, damage from oil and gas development, and pollution from mining in Africa highlight the pressing need for enforcement of environmental laws and standards throughout the continent. A solution to this lack may lie in appealing to the strong provisions ensuring citizens a healthy environment that already exist in many newly developed national constitutions.

Many African countries have explicit
constitutional provisions guaranteeing a clean, healthy environment capable of
sustaining human life and providing for daily needs. In its new report Constitutional
Environmental Law: Giving Force to Fundamental Principles in Africa
,
the
Environmental Law Institute® shows how these constitutional provisions can be
applied to give force and meaning to environmental guarantees and, thereby, the
laws meant to protect them.

“Courts around the world have interpreted the near-universal legal provision of ’right to life’ to imply the right to a healthy environment in which to live that life,” said report co-author Carl Bruch, ELI Staff Attorney and Director of the Institute’s Africa Program. “Many countries in Africa are in the vanguard in expressly guaranteeing a ’right to a healthy environment’ in their national constitutions, along with the procedural rights necessary to implement and enforce it.”

The report addresses the right to life and the right to a healthy environment in three different legal traditions existing in Africa: common law, civil law, and Islamic law. In addition, it emphasizes the importance of constitutional freedoms that facilitate environmental rights, including freedom of association, access to information, opportunities for public participation in decisionmaking, and access to justice through judicial review and citizen standing in the courts. Case studies from both within and outside Africa illustrate concrete ways that advocates and governments can invoke constitutional protections to implement and enforce environmental laws, regulations, and standards. The case studies provide examples from Botswana, South Africa, and Tanzania, among other countries. The report concludes with a synopsis of current trends and future opportunities for applying constitutional law to protect the environment.

“Constitutional environmental provisions, including procedural guarantees, offer some of the best tools for environmental advocates,” said Bruch. “This research highlights ways that advocates can put constitutional principles to use in protecting public health and natural resources.”

The report is a collaborative effort made possible through the efforts of Carl Bruch, former ELI Visiting Scholar Wole Coker, and Chris VanArsdale (an attorney with Greenberg Traurig), with resources provided from the World Resources Institute’s Institutions and Governance Program and the U.S. Agency for International Development.

Constitutional Environmental Law: Giving Force to Fundamental Principles in Africa, can be downloaded for free and can be ordered by calling (800) 433-5120 or sending an email to orders@eli.org. For press copies, please contact pressrequest@eli.org.