Litigation

Public Interest Environmental Litigation

The Litigation Project is one of the five projects that the Zimbabwe Environmental Law Association (ZELA) is currently running. Litigation refers to the resort to court action to seek redress of a grievance. The Court action can either be civil or criminal. Civil action is resorted to by private parties while criminal action is generally or ordinarily the preserve of public authorities.

In Zimbabwe the field of environmental law is the least litigious branch of law. This is regrettably not a sign that Zimbabwe is free of environmental problems but a sign that Zimbabwean communities are not informed and empowered to demand and enforce their environmental rights. The litigation project aims at empowering disadvantaged communities to demand and enforce their environmental rights.In order to meet the above objective the Zimbabwe Environmental Law Association (ZELA) strives to:

• undertake environmental test cases which will establish new legal precedents to protect environmental rights of disadvantaged communities.
• undertake public interest cases which while not establishing new environmental laws and principles in Zimbabwe, will nevertheless be of widespread benefit to the environment and members of the public and in so doing might change the attitudes of the public, local authorities and government regarding issues of environmental concern.
• promote an environmental rights test case culture in the judiciary and the general public.
• engage communities in alternative dispute resolution where appropriate
• undertake research concerning environmental rights issues.

Litigation is a necessary tool if there is to be finality to a dispute. Once the courts have determined the rights of the parties, either party will be obliged to abide by the Court’s ruling. There are however other forms of dispute resolution which are less confrontational such as conciliation, mediation and arbitration. These create perfect ground for future co-operation between parties. Litigation will therefore only be resorted to after exhausting the other forms of dispute resolution.

Research is undoubtedly an essential element of the litigation project as it helps to build a concrete foundation for effective impact litigation. Among other issues, this project seeks to ascertain, the extent of the rights of communities (e.g. locus standi) to take legal action to:

• prevent or stop an act which is deleterious or injurious to any segment of the environment or likely to accelerate unsustainable depletion of natural resources.
• procure any public officer to take measures to prevent or stop any act or omission which is injurious to any segment of the environment for which the public officer is responsible.
• require that any on-going project be subjected to an environmental audit

Due to limitation of resources the project will initially focus on urban communities during the first two years. In the event that enough funding is secured, the project shall cover disadvantaged communities in Zimbabwe

The First Test Case

The first test case which ZELA has filed with the High Court is a case in which ZELA, together with some residents of Manyame Park Phase 1 and 2, have taken the Chitungwiza Municipality to court. The court application is premised on the following grounds.

• Since the construction of Phases 1 and 2 of Manyame Park Housing Projects there has been an open sewerage drain running for close to 4 km between the two phases to the Manyame River.
• Secondly the open sewerage drain was created by the Chitungwiza Municipality during the construction of the houses in Manyame Park.
• A situation where raw sewerage flows into people’s residential places, where children play and close to a primary school poses a serious health and environmental hazard to the residents of Manyame Park. The children at Chaminuka Primary School are in more danger as they cross the open cesspool on a daily basis on their way to and from school.
• ZELA commissioned biological laboratory tests whose results indicate that the residents of Manyame Park are at risk of suffering from diarrhea, malaria, cholera and dysentery as a consequence of the raw sewerage which has been flowing around their houses for quite some time now.
• All this is happening in spite of the fact that residents pay for sewerage services to the municipality, and despite demand on several occasions the municipality has either neglected and or refused to rectify the hazardous situation.

ZELA and the residents of Manyame Park are seeking a court order compelling the Chitungwiza Municipality to close the sewerage drain and construct a proper sewerage works. It further seeks to oblige the municipality to rehabilitate the land affected by the raw sewerage which has sipped deep in some residents’ stands.

This is only one of many cases which ZELA will undertake to improve environmental stewardship by local authorities, municipalities and even private companies where they are implicated. The new Environment Management Act [Chapter 20:27] has heralded a new legal framework which, if effectively implemented will see an improvement in the state of Zimbabwe’s environment. To be effective, these laws have to be known by the people who are affected and ZELA’s environmental education programme seeks to take the law to the people. Impact litigation is one such a strategy which will be complemented with seminars and workshops with the people affected and the law enforcement agency. For instance there are so many environmental offences created by environmental legislation and local authority bye-laws, but one would want to see law enforcement agencies enforcing these laws for the betterment of Zimbabwe’s environment.

Litigation and Conflict Resolution

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