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
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.
Members be hereby allowed to make inspection on the machine-readable
record and make notes of the Environmental Impact Assessment report and copies
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.
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.
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
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.
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.