The role of the judiciary in advancing the right to a healthy environment : eastern and southern African perspectives

LLD (Perspectives on Law), North-West University, Potchefstroom CampusThe right to a healthy environment has been constitutionalised in Uganda, Kenya, South Africa and Zimbabwe. While the wording of the right in these countries broadly mirrors that of the right to a healthy environment elsewhere in the world, the right must also be understood in the specific context of Africa and its unique circumstances and priorities. Beyond this fact, there is not much we know about how the law relating to the right has developed. In this respect, more specifically, we do not know how courts have advanced the right, how courts have protected people and the environment through this right, or how the courts have taken the state to task in requiring it to promote, respect, protect and fulfil the right. As far as could be established, there has not been any comprehensive research done that that seeks to link the development (or lack) of the right to a healthy environment in Uganda, Kenya, South Africa and Zimbabwe with the work of the judiciary in these countries. Based on this, the thesis advanced the proposition that one way of looking at the development of the right to a healthy environment in these countries is by analysing how courts have actually interpreted the right and subsequently advanced it in doing so. Proceeding from the premise that the right to a healthy environment could potentially advance environmental protection, sustainability, and protection of health and well-being; and that rights in general mean nothing if they are not adjudicated, enforced and developed by courts, the study makes a number of findings. These include that courts in the four countries under discussion have been easing rules on class actions and public interest environmental cases; courts have generally balanced the right to property with environmental protection; courts have emphasized the need for environmental and socio-economic considerations in decision-making; courts are taking a precautionary approach to environmental protection; and courts are increasingly being dynamic in their approach to environmental remedies. At a general level, the study finds that if the right to a healthy environment is to be advanced further, courts will have to interpret the component parts of the right. Further, courts in countries with a weak rule of law, like Zimbabwe, will have to be strong in the face of criticism and threats to ensure they exert their constitutional authority of defending rights in general, and the right to a healthy environment in particular. It will also be up to litigants to craft innovative and forward-thinking arguments with respect to the right that are amenable to sustainability and that could be litigated in court. The original contribution of this thesis lies in its being the first study to comprehensively interrogate the constitutionalisation of the right to a healthy environment in Kenya, Uganda, South Africa and Zimbabwe, from a comparative perspective; and to comprehensively interrogate the role of the judiciary in developing and ultimately, advancing this right.Doctora