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Case note- Community Water Alliance vs Environmental Management Agency HH 258/19

By Richard Ncube-Zimbabwe Environmental Law Association Legal Officer

The High Court of Zimbabwe on the 5th of November 2019 delivered a landmark judgment as per Justice Phiri. The judgment delivered is critical and important for environmental justice in Zimbabwe and has great implications for the realisation of environmental rights in the country. This write up seeks to comment on the legal implications of the judgment and what it means for the society in general.

Background of the case

 The case was filed by Community Water Alliance (CWA) an organisation based in Harare. The primary focus of the organisation is to provide civic education; monitor and observe water service delivery; disseminate information; provide capacity building and research on issues pertaining to water. CWA also analyzes policies, laws and regulations on water; builds human resource capacity of both policy makers and bureaucrats at Local Authority level. In this case CWA sued Environmental Management of Zimbabwe and the Minister of Environment, Tourism and Hospitality industry, the responsible minister for the. Environment. Community water alliance`s case was premised on lack of access to information, the Environmental Impact Assessment document. It argued that to the extent that section 180 of Environmental Management Act (Chapter 20:27) restricts members of the public from making copies or reproducing EIA document, that flies on the right to access to information provided for in the Constitution. Further, they argued that Statutory instrument number 7 of 2007 to the extent it prescribes 300 Zimbabwean dollars for one to inspect the document limits the right to access information. They sought a declaratuer to have section 108 unlawful and inconsistent with the right to access information that is provided for in the Constitution. They further prayed for an order declaring the prescribed fee in terms of S.I. 7 of 2007 to be ultra vires section 62 of the Constitution.

The Court’s decision

The court had the occasion to consider the court application and the arguments by both lawyers and made the following decision

  1. Section 180 of the Environmental Management Act to the extent it prohibits the reproduction of documents in possession of the 1st Respondent (EMA) by the public is hereby declared ultra vires section 62 of the Constitution and null and void.
  2. Members be hereby allowed to make inspection on the machine-readable record and make notes of the Environmental Impact Assessment report and copies thereof.
  3. The 2nd Respondent be and hereby ordered to take reasonable measures to review the fee in line with reasonable standards that takes into consideration the right to access to information.
  4. There shall be no order as to costs

What is the meaning of the court judgment?

This is a remarkable judgment of our time in the environmental justice sector. It is progressive and vindicates fundamental rights that are provided for in the Constitution in particular section 62 of the Constitution. Simply put, the court declared section 180 unconstitutional to the extent it limits the right of the public to make copies of the Environmental Impact Assessment and any other document that is in EMA’s possession. In essence the members of the public can now not only inspect EIA document but can photocopy the document and read the document at their own time. It is important to note that this goes a long way in the realization of the right to access to information. It must be noted that the judgment is key especially for mineral hosts communities where EIA documents.Before this judgment information was held in secrecy and the public could not access the document. This judgment comes at a time where even public interest litigation organizations in Zimbabwe like the Zimbabwe Environmental Law Association (ZELA) have been facing resistance from the responsible authority   to reproduce the document for litigation. This judgment is therefore going to make the work of environmental lawyers easy.

The second part of the court`s ruling is also very key if followed to its logical conclusion and complied with. The High court ruled that the members of the public are allowed to make an inspection on the machine-readable record and make notes of the EIA report and copies on their own expense. This again enhance the capacity of the communities and the public at large to inspect the EIA document and make notes. Given this increased access to the EIA document community monitoring of the compliance by project developers is going to be easy and enhanced. It is important to also highlight that access helps the communities to assert their rights in case of non-compliance and violation of rights.

The third part the obligation on the Minister of Environment to take all the necessary measures in order to review the prescribed fee for EIA inspection in line with reasonable standards and the right to access to information. It is a fact that access to the EIA document prior this judgment was being restricted by the amount of money that one had to pay to inspect the document. In most cases the interested and affected people could not afford to pay the prescribed fee which is pegged at 250-300 Zimbabwean dollars. This is an exorbitant fee given that the majority of Zimbabwean live below the poverty datum line and they cannot afford to pay this amount. In the mining sector, mineral hosts communities which in most cases are in the rural setup cannot afford to pay this amount and as such this judgment is a reprieve to them. The ruling calls upon the Minister to take the necessary measures which might mean policy, legislative or administrative measures to ensure that people have access to the document. The Minister can facilitate the enactment of a law that reduces the amount to a reasonable fee. One other thing the Minister can take administrative steps aimed at ensuring that the public have access to the documents.

Conclusion

There is no doubt therefore that the case discussed above  will contribute to the protection and promotion of the right to access to information. There is need for the Environmental Management Agency to comply with this order in order to give the public access to EIA documents in EMA`s possession. Further, it is hoped that the Minister will also take this judgment seriously and put in place measures to prescribe a reasonable fee.

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