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Public Interest Litigation:The pain of litigating environmental issues in Zimbabwe……

Compiled by George Gapu

The conversation continues,check last week’s edition here

N. Jain (supra) states that PIL is also important in that it achieves the democratization of access to justice in that wider sections of the population are able to access the courts to enforce their rights. This gives meaning to the equality provisions in the Constitution and militates against discrimination based on economic circumstances.

                                  PIL IN ZELA

The PIL jurisprudence in Zimbabwe is dominated by judgments dealing with the enforcement of political and civil rights[1]. Under the old Constitution[2] there were no economic, social and cultural rights guaranteed in the Bill of Rights. There were civil and political rights only; right to protection of property, freedom of assembly and association, right to a fair trial and so on.

When ZELA was formed in 2001, the old Constitution was still in place. Encouraged by such judgments as the Catholic Commission for Justice and Peace (supra) which recognised that a human rights organisation has locus standi to bring to court a matter involving the violation of human rights,  ZELA believed that it could do the same with environmental issues.

The bigger motivation for commencing PIL in ZELA was however the realization that no one was giving attention to environmental violations affecting economically disadvantaged communities mostly located in the rural areas. These communities find themselves at the receiving end of environmental damage caused by mostly mining companies operating in their areas. They do not have the financial resources to engage lawyers to institute legal proceedings on their behalf.

Although there were many established human rights organisations[3] at the time that ZELA was formed, there was no organization that was focusing on environmental issues. Mining companies operating in areas like Mutoko district were reportedly causing massive environmental damage while the environmental regulatory authority, the Environmental Management Agency (EMA), was seemingly powerless to address the situation.[4]

There was huge demand for litigation services once ZELA started interacting with the communities. In areas like the diamond rich Marange district, communities faced incessant harassment from security forces trying to stamp out illegal mining and trading in the alluvial diamonds. Human rights violations ranged from unreasonable restrictions on freedom of movement and association, forced relocations and unprovoked  assaults. In addition, there was massive environmental damage caused by the mining companies ranging from water pollution to land degradation. In high density urban suburbs the most common problem has been poor sanitation and lack of clean drinking water.

 Due to resource limitations  the organisation decided to focus on litigation which would achieve the greatest impact for the public good. This was the main consideration in deciding the cases to be taken to court.

One of the first cases taken on by ZELA pertained to poor sanitation in Chitungwiza’s Manyame Park suburb. Untreated sewage flowed freely through the streets in sections of the suburb posing a serious health hazard to the inhabitants especially children. A residents association was identified in the suburb and a court application was prepared with the association as the applicant.[5] The relief sought was for an interdict compelling the local authority[6] to contain the sewerage problem. The High Court granted the order. On enforcement, the local authority pleaded that it did not have the financial capacity to provide a lasting solution to the problem. ZELA advised the applicant to file contempt of court proceedings but the applicant was reluctant to do so.[7]  In the absence of instructions from the association, ZELA could not take the case any further. In the end it is the local residents who did not get the benefit of the High Court order.

In December 2009 ZELA received instructions from some residents in the Chiadzwa community to stop their forced relocations from the Chiadzwa communal lands until they received adequate compensation and an environmental impact assessment conducted. Chiadzwa is in the heart of the diamond fields located in the Marange district, Manicaland province.  The villagers had simply been informed that they would be relocated within 48 hours to pave way for mining companies. They had not been consulted about any compensation and the suitability of the accommodations prepared for them at the destination. The villagers were not aware of any environmental impact assessment (EIA) having been conducted prior to the commencement of mining activities in accordance with the law.[8] ZELA filed an urgent chamber application on behalf of a local residents association for an interdict to stop the forced relocations until issues of compensation and facilities at the new site had been clarified. The applicant also wanted an EIA to be conducted for the mining activities[9]. The respondents were the mining companies, the Minister of Local Government and National Housing and the Minister of Mines. The respondents opposed the application. The Minister of Local Government opposed the application on the basis that his ministry was overseeing the construction of modern houses and facilities including clean water and irrigation facilities. It was submitted that the mining companies had put together a sizeable fund for the construction of the facilities and that the relocated families would have better facilities than they had in Chiadzwa.  The companies argued that they had already conducted their EIAs. It was further argued that the villagers had delayed in filing the application and accordingly it was not urgent.

The court dismissed the application on the basis that it was not urgent. It was held that the villagers had known of the intended relocations long before the application was filed at court. It was also held that as indicated by the Minister of Local Government, there was a programme in place to ensure that the interests of the affected villagers had been taken into account since no one was going to be evicted until all the facilities had been put in place. Although the application was dismissed, it achieved the desired effect in two ways. Firstly, no one was in fact evicted from Chiadzwa during that month. In fact, people were evicted over a year later after the houses had been constructed. Secondly, for the first time the affected villagers obtained information about the government’s plans for them. They got to know the benefits being promised, the facilities being put in place and how compensation would be calculated per household affected. They also got to know that the companies had in fact clandestinely conducted EIA processes by interviewing selected inhabitants who supported the mining activities.[10]

In 2011 ZELA decided to test the access to information law.[11] It formally requested copies of mining contracts for companies mining in Chiadzwa from the Ministry of Mines and the Zimbabwe Mining Development Corporation (ZMDC). The request was ignored. In September 2011 the organisation filed an application for review at the Zimbabwe Media Commission which is mandated to deal with such matters[12]. Despite verbal assurances that the application would be adjudicated upon, the Commission is yet to decide the matter.

In July 2012 a scientific study commissioned by ZELA showed that three diamond mining companies operating in Marange diamond fields were polluting rivers flowing through the area by discharging mine waste and effluent into the environment in breach of environmental laws and the companies’ own EIA plans. The waste and effluent were being discharged directly into local rivers such as Singwizi, Save and Odzi. The pollutants caused the rivers to become silted, muddied, dirty and toxic.  The local community members rely on the rivers for drinking water, watering their livestock, gardening and other domestic uses. The people could no longer use the river for such purposes especially at the peak times when the discharges were made. People were losing livestock as a result of the toxic chemicals in the rivers. Diseases related to the toxins such as cancer, cholera, typhoid and skeletal fluorosis threatened the community.

 The community instructed ZELA to approach the courts for an order stopping the pollution of the rivers. The organisation commissioned some experts to conduct a scientific study into the causes of the pollution and the effects of the pollutants. Armed with the report which showed that the companies were responsible, the organisation commenced court action in August 2012. The mining companies defended the claim. They raised a special plea of non joinder of the Environmental Management Agency and an alleged failure to request the Agency to deal with the matter as the regulatory authority[13]. The matter was argued on 5 November 2013 and judgment has not yet been passed by the court.

CHALLENGES

The cases taken up by ZELA have shown that there are challenges in litigating on environmental issues in Zimbabwe. Firstly, access to information is still denied by the authorities despite the existence of AIPPA, the Environmental Management Act and the new Constitution. The offices of the Environmental Management Agency flatly refuse to make public the EIA reports of the mining companies despite the fact that such documents are supposed to be in the public domain. Letters requesting access to the documents are simply ignored. It means that local communities have to approach the courts to compel the Agency to disclose the documents before they can access them.

Secondly, the fees charged by the Agency to access EIA documents are prohibitive to most people. The Agency charges a flat fee of US$250.00 to peruse the documents at their offices. They do not allow copies to be made. The fees were statutorily gazetted in the Environmental and Natural Resources Management (Environmental Impact Assessment and Ecosystem Protection) (Amendment) Regulations 2011 (No.1), Statutory Instrument  3 of 2011.[14] This is unaffordable to inhabitants of rural areas who are mostly affected by projects for which EIAs are prepared.

The requirement that no copies can be made and that the documents must be inspected in the offices of the Agency not only limits access to information, but it can be intimidating to individuals from local communities. On 28 July 2011 ZELA formally wrote to the Environmental Management Agency and the Minister of Environment requesting them to reduce the access fees on the basis that they effectively prohibited access to the EIA documents. The letter was ignored. It is possible to challenge the fees prescribed in the Regulations. It is arguable that the Regulations violate section 62 of the Constitution.[15]

It has been held that “Where such a power (ie to fix licence fees) is given the Court cannot interfere on the mere ground that it considers the fee unreasonably high. The size of the fee, however, might in certain circumstances be a factor in considering whether the Council genuinely exercised its powers of licensing and regulating, or mala fide used such powers for achieving an ulterior object such as prohibition. For instance, the Council might prescribe a licence fee so outrageously high that the only reasonable inference was that the object was to prohibit the business in question entirely.”[16] It can be argued that the prescribed access fees are so high and the access conditions so onerous that the object of the Agency is to prohibit the exercise of the right.  

Thirdly, there are inherent delays in the time taken to resolve matters in court. In Zimbabwe, it generally takes about two years for a matter to be determined in the High Court. In some cases, it can take more than a year before a judgment is passed[17]. There is no time frame within which a court must pass judgment after hearing a matter. These delays are frustrating for the community which will be living with the effects of the environmental harm.

Obtaining relief on an urgent basis in PIL cases presents peculiar challenges. The flow of information is not always efficient because the environmental damage invariably occurs in rural and outlying areas. It takes time for matters to be reported to ZELA. Some investigation must then be done by the organisation before the matter is filed in court. By the time an urgent application is made in court, there will be sufficient delays to warrant the matter being dismissed on the basis that it is not urgent.

The requirements for urgency are very strict. The approach taken by the courts has been described as follows: “If by its nature the circumstances are such that the matter cannot wait in the sense that if not decided immediately irreparable prejudice will result, the court can be inclined to deal with that on an urgent basis. Further, it must be also clear that the applicant did on his own part treat the matter as urgent. In other words if an applicant does not act immediately and waits for doomsday to arrive and does not give a reasonable explanation for the delay in taking action, he cannot expect to convince the court that the matter is indeed one that warrants to be dealt with on an urgent basis.”[18]

Judges in Zimbabwe have limited training in environmental law. The subject was not taught in Zimbabwean law schools until the late 1990s. The limited number of environmental cases in the courts also ensures that there is limited experience in dealing with such cases. The result is that there is limited jurisprudence on environmental law.

Zimbabwean judges have not benefitted from training programmes conducted by international institutions such as the United Nations Environment Programme (UNEP)[19] and the Environmental Law Institute. Such training programmes help the Judges in keeping abreast not only with current trends and developments in environmental aw but also with international principles such as the polluter pays principle, precautionary  principle, principle of intergenerational equity, and the preventive principle. These principles are now firmly entrenched in the Zimbabwean Constitution[20] and the Environmental Management Act[21]. Courts in other jurisdictions such as India[22] have applied and developed such principles and Zimbabwean Judges would benefit from such exchanges.

ZELA has not been able to take up some significant PIL cases due to budgetary constraints. As a nonprofit organisation relying primarily on donor funds, the cases which can be taken up are determined by the financial resources available for litigation at any particular time. This handicap has generally ensured that the organisation cannot take up many significant cases brought to its attention much to the frustration of the affected communities. Most nonprofit organisations involved in PIL such as the Zimbabwe Lawyers for Human Rights and the NGO Forum are primarily concerned with civil and political rights issues. ZELA requires increased litigation funding to deal with PIL cases in the environment sector.

There are few lawyers in Zimbabwe with an interest in environmental issues. ZELA cannot do it alone. There is need for environmental issues to be discussed in the broad legal profession in the country so that the pool of lawyers interested in and able to deal with environmental cases can be increased. There is need for more lawyers to be involved in environmental PIL. An analogy can be drawn with the work of the established Zimbabwe Lawyers for Human Rights. It has got an established PIL programme.[23] It funds PIL by members in private practice on human rights issues where there are alleged violations. It funds dozens of PIL cases filed in the courts every year and actively encourages its members to take up such cases.  ZELA can adopt a similar approach by engaging the legal profession and sharing experiences and skills on environmental litigation.

ZELA’s reach in dealing with PIL cases is also limited by its inadequate personnel. The organisation has got only 4 lawyers who are fully involved with other projects. It has got offices in Harare only from which it serves communities in outlying areas like Mutare, Zvishavane, Mutoko, Ngezi, Marange and others which are hundreds of kilometres away. This hampers access to and by the communities and increases the cost of engagement. The organisation needs to establish offices in other strategic towns in order to boost its capacity to respond efficiently to cases brought by affected communities.

RECOMMENDATIONS

There is no doubt that PIL on environmental issues can play a significant role in uplifting the livelihoods of affected disadvantaged communities in Zimbabwe. It is the only way that  such communities affected by  pollution issues for instance, can have access to the courts. It is also the only way that industries operating in poor communities can be brought to account for their omissions and commissions. The huge demand for legal representation from affected communities is a clear indication that PIL can play a key role in promoting access to justice. Furthermore, it ensures that environmental matters are brought into mainstream disputes ordinarily dealt with by the courts.

ZELA needs to strengthen its PIL work. There is need to have a dedicated PIL programme for the organisation. This ensures that there is a programmatic and structured approach to the PIL work of the organisation. Having a separate programme ensures that there is a clear strategy that is developed for the PIL work. It also ensures that efforts are made to have sustained litigation cases in the courts and not the few cases handled so far.

It has been observed that for PIL to succeed in achieving social impact there must be a coherent long term strategy and not reliance on “one shot” success.[24]  Real impact may be achieved by a series of cases filed in the courts. Repeated litigation on a particular issue develops expertise in the area and the organisation can “enjoy economies of scale and low start up costs in litigation.”[25] There is therefore need to increase the number of environmental cases taken to court by the organisation.

It is not adequate for the organisation to raise PIL funds as incidental to other projects. The PIL programme must raise its own funds for its activities which would include investigations, research and counsel’s fees. PIL work for the organisation usually suffers due to limited funds being available.

There must be litigation lawyers working in the department who can readily attend to cases as they arise. The ability of the organisation to recruit and retain qualified and competent personnel is directly affected by its ability to pay competitive remuneration. This is a key factor for the success of the programme.

The organisation should consider decentralizing so that it can more accessible to its key stakeholders; the disadvantaged communities. It would be ideal if the organisation establishes offices in other towns like Mutare and Gweru which are closer to the mining communities where most issues arise.

The enhancement of the capacity of the judiciary needs to be addressed. Zimbabwean Judges have lagged behind in receiving training on environmental issues and their adjudication. ZELA can work with experienced organisations like UNEP and ELI to train the local judges. In addition, experience sharing exchanges with Judges from other countries  with more experience in dealing with environmental litigation can also be organized by the organisation. This would enhance the capacity of local courts to deal with environmental cases and apply international principles of environmental law.

Capacity development to deal with environmental matters must also extend to lawyers in private practice and state lawyers. ZELA must strive to build a network of lawyers in private practice who have an interest and capacity to handle environmental litigation. The process can start by bringing environmental litigation into the mainstream agenda for the lawyers body in Zimbabwe, the Law Society of Zimbabwe. Matters which the organisation cannot handle would be referred to such lawyers. Through the network, the lawyers can also foster collaboration and cooperation.

On the demand side, ZELA has done some solid work in building the capacity of rural communities. It has facilitated the formation of community based organisations (CBOs) and assisted them with start up funds and training on running a CBO. It has assisted them to establish networks with similar organisations in the country and in the region. The CBOs have a good appreciation of issues and community rights.

CONCLUSION

ZELA pioneered the introduction of PIL in environmental matters. Previously, PIL had been confined to civil and political rights matters. The dearth of jurisprudence on environmental law shows the extent to which such issues are peripheral in the Zimbabwean legal system. There is need to build on the movement started by the organisation. This can be done by ZELA improving its capacity to handle PIL matters. ZELA cannot however do it alone. It is necessary that there is a wide spread of lawyers with an interest in handling environmental litigation. Training is needed to build the capacity of the lawyers. The training should spread to the judiciary as well. Such training would provide the infrastructure required to improve access to justice by all citizens through PIL.         


[1] Not surprisingly, most reported judgments on PIL such as the CCJP case (supra) deal with these rights.

[2] Zimbabwe adopted a new Constitution in 2013 which was overwhelmingly endorsed in a national referendum. The new constitution replaced the Lancaster House Constitution which had been in place since independence in 1980.

[3] Organisations such as Zimbabwe Lawyers for Human Rights, Zimbabwe Human Rights Association, NGO Forum, Zimbabwe Association of Doctors for Human Rights, Women of Zimbabwe Arise, Transparency International Zimbabwe, Amnesty International (Zimbabwe) and so on were already established in 2001.

[4] Workshops subsequently held in Mutoko and other areas confirmed that EMA’s capacity to deal with the challenges in the districts was severely hampered by a lack of resources for its country officers. Some of the mining companies roped in politically influential local individuals who ensured that mining operations were not hampered by the Agency.  The prescribed statutory fines were also not deterrent enough to the mining companies. 

[5] The association was called Manyame Park Residents Association.

[6] The Chitungwiza Town Council was cited as the respondent in the court application.

[7] It emerged that when the interdict application was filed, the local authority was under the control of one political party. By the time that the interdict was granted and contempt of court proceedings were mooted, the local authority was now controlled by another political party. The residents association, apparently being aligned to the party then in charge, were reluctant to embarrass the party by filing the contempt of court proceedings.

[8] In terms of the Environmental Impact Assessment (Ecosystem Protection) Regulations, Statutory Instrument no. 7 of 2007, local communities are supposed to be consulted in the process of conducting an environmental impact assessment. The communities alleged that there had been no consultation whatsoever even though mining activities were already underway. The Environmental Management Act (Chapter 20;27) provides that no mining project should commence until an EIA certificate has been issued by the Environmental Management Agency after receiving an EIA report for the project. 

[9] Section 97 of the Environmental Management Act (Chapter 20;27) provides that no mining activity shall be conducted before an EIA has been conducted.

[10] THE EIA reports for the mining companies are still inaccessible although they are supposed to be public documents.

[11] The Access to Information and protection of Privacy Act (Chapter 10;27) (AIPPA)

[12] Section 54 of AIPPA.

[13] In Zimbabwean administrative law, there is a general requirement that one must exhaust internal remedies before approaching the courts. The Agency does not however, have adjudicating functions under the Environmental statute.

[14] It must be noted that the fees for appealing against a decision of the Agency to the Minister is US$240.00. This should be compared against the cost of filing an appeal to the Supreme Court from a decision of the High Court which is US$5.00.

[15] Section 62(2) provides that “Every person, including the Zimbabwean media, has the right of access to any information held by any person, including the State, in so far as the information is required for the exercise or protection of a right.”

[16] Satellite Television Users Association v Posts and Telecommunications Corporation 1991 (2) ZLR 226 (HC) at page 233.

[17] For instance, the special plea in the Chiadzwa river pollution case was heard in November 2013 and despite several follow ups, judgment is yet to be passed.

[18] Dexprint Investments (Pvt) Ltd v Ace Property and Investments Company (Pvt) Ltd HH120/2002. AlsoMoxon and another v Chikamhi and another HH2951/09; Mariyapera v Eddies Pfugari and Another HH203/13; Graspeak Investments (Pvt) Limited v Delta Corporation (Pvt) Limited and Another 2001 (2) ZLR 551 (H) at p.555A-D,

[19] UNEP has a programme for training judges and other judicial stakeholders in Africa through its Division on Environmental Law and Conventions (DELC). It has conducted training sessions in Nairobi, Kenya for East African Judges. See United Nations Environment Programme,httpp://www.unep.org/delc/judgesprogramme/tabid/78617/Default.aspx (18 February 2015)

[20] Section 73 of the Constitution

[21] See generally section 4 of the Act. For instance, section 4(2) of the Act provides that;

 (f)  anticipated negative impact on the environment and on people’s environmental rights shall be prevented, and where they cannot be altogether prevented , be minimized and remedied;

(g)  any person who causes pollution or environmental degradation shall meet the cost of remedying such pollution or environmental degradation and any resultant adverse health effects, as well as the cost of preventing, controlling or minimizing further pollution, environmental damage or adverse health effects;”

[22] See generally Ashok H. Desai, Public Interest Litigation: Potential and Problems, published in B.N. Kirpal, Supreme but not infallible-Essays in Honour of the Supreme Court of India, New Delhi, Oxford University Press, 2000, http://www.ielrc.org/content/a0003.pdf (18 February 2015)

[23] www.zlhr.org.zw (20 February 2015).

[24] G. Marcus,” A Strategic Evaluation of Public interest Litigation in South Africa”. The Atlantic Philanthropies. http://www.atlanticphilanthropies.org (20 February 2015)

[25] G. Marcus op cit, p 128

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