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Constitutional rights key to environmental protection in Africa
January/February 2000

African countries have a surprising number of environmental rights, but in the vast majority of cases the institutional capacity to protect and enforce those rights are lacking, according to panelists at an ELI Associates Seminar held in November.

Attorney Carl Bruch, Director of the Institute’s Africa Program, began with an introduction to the importance of constitutional environmental provisions. While many African countries have statutes, regulations, and other provisions to protect the environment, they are often not enforced. As well as acting as a safety net, constitutional provisions elevate environmental protection to a fundamental human right, he pointed out. They also provide procedural rights for citizens and NGOs to obtain information, participate in decisionmaking, and have access to the courts.

Two-thirds of African nations have a constitutional right to a healthy environment. While few African courts have applied these rights, Bruch believes based on ELI’s experience with other countries evolving new environmental law regimes that African courts may look to other courts around the world to provide guidance.

Chris Van Arsdale, an attorney with the firm of Greenberg Traurig and author of the right-to- life section of an upcoming publication on African constitutional environmental law, discussed how courts use the right. Almost all African constitutions contain a basic concern for human life, but "how far can you expand the right to life? Does it include a right to clean water and air? How clean is clean enough?"

Tendu Lissu, an attorney with the Lawyers Environmental Action Team in Tanzania, discussed the evolution of constitutional environmental law in his country. Tanzania has had four constitutions since 1961, none of which originally included protection for basic human rights. However, the current constitution, adopted in 1977, was amended in 1984 to include these rights. A provision was also included that made these rights unenforceable for three years so the government could amend statutes that were inconsistent with the constitution. Starting in 1987, public interest advocates and the courts took action, striking down statutes that violated basic environmental rights.

In spite of this aggressive legal action, Lissu believes that the streets and the airwaves provide crucial support for these court battles. Without popular support, many of the legal challenges would not be heard or taken seriously.

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