Research and Other Publications
|
Making Environmental Law WorkImplementing Constitutional Environmental Protections in Africa Constitutions frequently offer a strong basis for environmental protection. While most African constitutions include environmental protections, only a few African nations have applied or judicially interpreted the provisions. At the request of numerous African environmental NGOs, ELI analyzed the text and application of provisions of African constitutions that provide environmental rights and identified ways that African advocates can utilize these protections to create real, enforceable rights. To illustrate opportunities for innovative environmental lawyering and implementation of constitutionally provided rights, the research highlighted instances where African lawyers and judges have successfully argued for novel legal interpretations and implementation of constitutional environmental law. Given the dearth of constitutional environmental experience in Africa, the project also surveyed constitutional decisions from civil and common law jurisdictions outside Africa that might assist in interpreting African constitutional provisions. For example, in some common law jurisdictions – such as India and Nepal – courts have interpreted a constitutional right to life, which is recognized in almost all African constitutions, to include a right to a healthy environment. The research assessed ongoing trends of constitutional reform and the possibilities presented for addressing issues of environmental and participation rights through such reform. The project also investigated methods and procedural rights that are necessary to give force to environmental rights, such as provisions in African constitutions enshrining the public’s right to participate in the administrative and legislative processes, access to information, and access to justice (including “standing to sue”). A summary of the work appeared in 1999 in the African environmental law and policy journal Innovation. The complete analysis was published as an ELI research report on “Constitutional Environmental Law: Giving Force to Fundamental Principles in Africa” as well as in the Columbia Journal of Environmental Law and the South African Journal of Environmental Law and Policy. It was reprinted in excerpted form as a World Resources Institute policy brief. ELI also presented the material at a WRI workshop on Environmental Governance in Central Africa (April 26-27, 1999), at an ELI seminar on “Implementing Constitutional Environmental Protections in Africa” (November 4, 1999), and at the East African Workshop on Improving Access to Environmental Justice (June 18-21, 2000) co-hosted by ELI. African constitutions also have provisions that recognize or can be useful in protecting customary laws and institutions. In Africa, customary law represents a large body of potentially powerful, but as-yet underutilized, legal norms to protect the environment and ensure equitable distribution of natural resources. Customary law is the body of law that represents the actual norms and practices of local African communities before the colonial era, and it continues to exert significant influence over the day-to-day activities of most Africans. In many African countries, the national laws conflict with the customary tribal laws, and this conflict often impedes the effective implementation of the national laws. |
