24 March 2023
Compiled by Clarity Sibanda
Climate change poses an existential threat to humanity, and the negative consequences are borne disproportionately by those who not only emit fewer greenhouse gases but are already in disadvantageous situations due to gender, poverty, and other factors. These are the words of Zimbabwe Environmental Law Association’s (ZELA) Executive Director Mutuso Dhliwayo during the lawyers’ training on climate justice litigation, critical minerals, and mechanisms for promoting transparency and accountability. The meeting was co-hosted by ZELA and the Center for Human Rights on March 23–24, 2023.
Dhliwayo added that a safe climate is a vital element of the right to a healthy environment and is essential to human life and well-being.
Lloyd Kuvheya, Assistant Director of the Center for Human Rights, emphasizing that a safe climate is a vital element of the right to a healthy environment, said unsustainable patterns of consumption and production have contributed to a reduction in biodiversity, increased pollution, and ultimately global warming. “It is time for legal practitioners to advocate that the extraction of resources benefits the locals. Litigating against those corporations at the forefront of resource plunder at the expense of communities can be done; it is possible. We need to stop the plunder.” In agreement with ZELA’s Michelle Chitando, he highlighted that, several judicial and non-judicial mechanisms for holding corporations accountable have been developed in recent years. One key mechanism is climate change litigation, which has risen in prominence globally to achieve climate justice. The number of climate litigation cases in the world has more than doubled since 2015.
The year 2019 was the second warmest year on record and signaled the end of the warmest decade ever recorded. In Sub-Saharan Africa, droughts, cyclones, and floods have destroyed livelihoods, killed people, and even displaced them. In all this, it is the vulnerable communities who bear the brunt of climate change as they do not have the requisite means to adapt and mitigate nature’s vagaries. Kuvheya added that states have an obligation to protect the enjoyment of human rights. He defined the right to a safe, clean, healthy, and sustainable environment as “clean air, safe climate, healthy and sustainably produced food, access to safe water and adequate sanitation, non-toxic environments in which to live, work, and play, healthy ecosystems and biodiversity.”
“If you are not fighting for the rights of ordinary people, you are not worth your salt as a lawyer,” he stressed, underscoring the importance of bringing to book the perpetrators of environmental injustice. When water and air pollution continue unabated, in some countries multinational corporations in the extractive industry destroy the environment with impunity, and environmental regulatory bodies fail to perform their duties effectively, then Article 24 of the African Charter will continue to be violated with detrimental climate change impacts,” he said.
As another measure to promote corporate accountability, Accountability Counsel took time to share on International Accountability Mechanisms (IAMs). While unpacking the IAMs, Teresa Mukua, stated that they have been working to advance the creation of accountability frameworks that meet international best practice so that communities raising social and environmental grievances receive a response and remedy through an independent, fair, transparent, professional, accessible, and effective process.
There is a ray of hope as noted in 2022, where the China Banking and Insurance Regulatory Commission issued Green Finance Guidelines that apply to all Chinese banks and insurers. This is the first time a Chinese policy has required investors to set up accountability mechanisms, she indicated.
Climate Focus’s Lydia Omuko – Jung in her presentation on Litigating Climate Change Mitigation and Adaptation unpacked the Save Lamu Case and other climate litigation cases relevant to Africa. On the basis of an Environmental Impact Assessment (EIA), the National Environmental Management Authority (NEMA) of Kenya issued an EIA Licence to Amu Power Company to proceed with a coal-fired power plant project in the County of Lamu. The organization Save Lamu, alongside several other community groups, challenged the issuance of the Licence on the grounds, inter alia, that the EIA failed to fully account for environmental harms, that the mitigation measures were inadequate, and that the EIA process did not involve adequate public participation. The tribunal set aside the EIA Licence, ordering Amu Power, should it still wish to pursue the project, to undertake a fresh EIA adhering to each step of existing EIA regulations.
Lawyers were encouraged to gather sufficient evidence to present in court, as well as to be innovative enough to integrate with other disciplines, participate in policy development, and ensure that development does not violate community rights.