Compiled by Mutuso Dhliwayo and Hazel Tariro Chimbiro

1. Introduction / Background

To develop a cadre of judges, lawyers and experts with expertise in environmental law, strengthen access to courts in environmental cases and facilitate the effective adjudication of environmental cases, many countries have created specialized environmental courts and tribunals (ECTs) or environmental , green ‘benches’ within existing courts[1]. While these institutions are not the only way of improving the accessibility and expertise of courts in environmental cases, they can provide a mechanism for improving adjudication of environmental cases that complement the usual courts and tribunals. ECTs often have more independence, alternative dispute resolution mechanisms, judges trained in environmental expertise and flexibility compared to courts of general jurisdiction. To date, over 2,116 ECTs have been established in 67 countries[2] and Africa is not being left behind especially with the increase in environmental crimes.

ETCs may take different forms and models, with no single best model or “one-size-fits-all” design. What is best for each country depends on what fits the country’s unique ecological, historical, legal, judicial, religious, economic, cultural and political conditions[3]. Through the enforcement of environmental laws and the settling of environmental disputes, ECTs help countries meet the objectives of the United Nations 2030 Agenda for Sustainable Development[4] and the Paris Agreement on Climate Change[5], the Convention on Biological Diversity and the Convention on International Trade in Endangered Speices among other international environmental instruments and commitments. They provide access to environmental justice and remedies, strengthen judicial systems to ensure accountability, and spur legal innovation and reforms. ECTs strengthen judicial systems, development of jurisprudence  and promote accountability by enhancing a country’s legal capacity to address environmental challenges, as well as by providing sound explanations to the public on the workings of environmental law.

In Africa, as of 2021, there are 62 environmental courts and at least 21 environmental tribunals in the region. The Environment and Land Courts in Kenya remain the most advanced type of environmental court in Africa, having developed a robust and progressive jurisprudence. Kenya has gone a step further becoming the first country ever to authorize ECTs in its Constitution[6]. ETCs play a critical role in the development of environmental jurisprudence and environmental rule of law. Countries such as Uganda, Mauritius, Madagascar, Ghana and Ethiopia have established ECTs and specialized green benches. Zambia and Zimbabwe can learn from the successes and challenges from African countries that have established ECTs.

2. The Environmental Protection Dialogue (EPD) 2024

The Centre for Environment Justice[7] (CEJ) has hosted the Environmental Protection Dialogue (EPD) every year for the past five years to discuss various environmental issues bringing together government departments, traditional leaders, development partners and local and international organizations, Community Based Organisations and Civil Society Organisations. This year , the EPD had an international flavour with participnats from Zimbabwe , Kenya, South Africa and Senegal. The EPD was held from the 9^th to the 11^th of October 2024 at Mulungushi International Conference Centre, Lusaka, Zambia. Some of the topics discussed include establishment of an environmental court in Zambia, amplifying the voices of children in environmental and climate justice, codification of the customary land law, achieving environmental sustainability through corporate partnerships and the role of Trans-Frontier Conservation Areas in the Southern African Development Community (SADC) region: challenges and opportunities.

The theme of the dialogue was strengthening environmental law for thriving communities. Establishment of environmental courts or specialized environmental triburanls , is one of the ways of strenghthening environmental laws for environmental protection and for thriving communities. In her opening remarks the Executive Director (CEJ), Ms Maggie M. Mwape highlighted that CEJ has created a platform for traditional leaders, government line ministries, youths, civil society and private sector to discuss pressing environmental challenges in Zambia. It is important to reflect on the theme and its importance in enhancing legal reform and protecting vulnerable communities. Ms Mwape also emphasized the need for effective enforcement of environmental laws to protect marginalized communities. She also highlighted the importance of more involvement of communities in decision making processes in environmental protection.

In his special keynote speech, the Deputy Director of the United Nations Environment Programme Law Division, Mr. Andrew Raine reiterated the need to enhance the protection of environmental rights and that an African instrument on environmental rights was being developed. He also highlighted that ECTs are critical in advancing environmental justice. In addition, he emphasized the importance of improving environmental rule of law thus ensuring effective implementation, compliance and enforcement of environmental laws. Mr Andrew Raine stressed the core elements of environmental rule law which are (a) fair, clear and implementable environmental laws (b)access to information, public participation and access to justice (c) accountability and integrity of institutions and decision-makers (d) Clear and coordinated mandates and roles, across and within institutions (e) accessible, fair, impartial, timely and responsive adjudication (f) recognition of the relationship with rights  and (g) specific criteria for interpretation of environmental law.

The Executive Director of the Zimbabwe Environmental Law Association (ZELA) was part of a panel discussion on establishment of an Environmental Court in Zambia. Environmental courts have become a global trend with the emergence of climate change litigation and the urgent need to deal with the triple planetary crisis of climate change, biodiversity loss and pollution. This panel’s discussion was aimed at delving into the multifaceted role of ECTs in environmental protection, with a particular focus on the prospects and challenges of establishing an Environmental Court in Zambia. The panellists, comprising environmental legal experts from Zambia, Zimbabwe, Kenya, and South Africa, a representative from the Zambia Environmental Management Agency (ZEMA) and Judiciary, offered insights gleaned from their respective jurisdictions. Mr Dhliwayo stressed the need for the relevant stakeholders to conduct research that convinces the judiciary and other stakeholders of the need to establish an environmental court. He emphasized that without evidence to show the need and the model of the court, stakeholder buy in will be difficult. Mr Dhliwayo also reiterated the need to learn from jurisdictions where ECTs have been successfully established for example in Kenya. He also stressed the need to work with law makers for them to understand the importance of ECTs is critical as it is the law makers who raise motions in parliament. In addition, he emphasized the need to organize exchange and learning visits for judicial officers to jurisdictions where environmental courts have been established. The panel also highlighted benefits of establishing an Environmental Court in Zambia and these included:

1. Improved access to environmental justice for communities
2. Timely finalization of environmental cases and facilitates the effective adjudication of environmental cases
3. Development of environmental rule of law and environmental jurisprudence
4. Development of cadre of judges, lawyers and experts with expertise in environmental law
5. Strengthens access to courts in environmental cases
6. ECs, often have more independence and flexibility compared to courts of general jurisdiction.

1. Zimbabwean context on ECTs

 The National Development Strategy 1 recognizes that despite having high level of biodiversity with global significance, Zimbabwe is experiencing increasing environmental challenges which include water, land and air pollution, littering, mushrooming of illegal waste dumps, siltation, illegal mining, veld fires, deforestation, poaching and biodiversity loss[1]. The thrust of environmental protection, climate resilience and natural resource management under the NDS1 is on sustainable management of wetlands, rehabilitation of mined areas, climate change mitigation and sustainable natural resources management. The justice delivery system plays a critical role in providing access to justice for environmental cases. Adjudication of environmental cases and law enforcement are crucial in mitigating the environmental challenges identified in NDS1.

The move towards the establishment of ECTs is premised on the recognition of environmental rights as human rights in section 73 of the Constitution[2]. Section 73 of the Constitution of Zimbabwe states that:

(I) Every person has the right—

(a) to an environment that is not harmful to their health or well-being; and (b) to have the

(b) environment protected for the benefit of present and future generations, through reasonable legislative and other measures that—

(i)prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting economic and social development.

(2) The State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the rights set out in this section.

Section 4 of the Environmental Management Act also speaks of environmental rights. It provides for the right to a clean environment that is not harmful to health, access to environmental information; and protects the environment for the benefit of present and future generations[3]. The Constitution of Zimbabwe and the Environmental Management Act are also complimented by other laws such as the Parks and Wildlife Act Chapter [Chapter 20:14] and the Forest Act Chapter [19:05] in ensuring environmental protection. Unlike Zambia, Zimbabwe’s constitution recognises environmental rights in the Bill of rights. Therefore, Zimbabwe has a legal framework that can be useful in the context of establishing ECTs. The Constitution lays a strong foundation for creation of other courts through Acts of Parliament[4]. It is also important to note that the establishment of Environmental courts/ tribunals is provided for under the Environmental Management Agency’s 2021-2025 Strategic Plan[5].

As part of the drive for the establishment of ECs to deal with environmental crimes , ZELA has established a number of Memorandum of Understandings (MOU) with relevant Government Agencies and departments. These include MOUs with Zimbabwe Parks and Wildlife Management Authority, Zimbabwe Republic Police Minerals Flora and Fauna Unit, Environmental Management Agency and the National Prosecuting Authority (NPA).

1. ZELA’s work on ECTs

ZELA conducted a research on the feasibility of establishing an Environmental Court in Zimbabwe in 2022. This study report was produced by the Africa Institute for Environmental Law (AIEL), ZELA ‘s research arm, which was engaged by Zimbabwe Climate Change Coalition (ZCCC) against the backdrop of massive environmental challenges in Zimbabwe due to various economic activities (mining, urban expansion, road construction and infrastructure development). The research looked at environmental legislation in Zimbabwe, ECTs in other jurisdictions, opportunities for establishing ECs, recommendation on models and the challenges in establishing ECs in Zimbabwe. A consultative workshop on the establishment of environmental courts in Zimbabwe was held in March 2024. ZELA collaborated with EMA, Zimbabwe Parks and Wildlife Management Authority, Zimbabwe Climate Change Coalition (ZCCC) and Save the Children in convening the workshop.  It was agreed from the workshop that there was need to do further research on establishment of Environmental Courts in Zimbabwe. A motion was also raised in Parliament on the need to establish environmental courts. However, it was denied because of insufficient research on the matter. ZELA is currently commissioning research on possible jurisdiction and remedies for ECTs in Zimbabwe. An ECT needs to have adequate remedies (powers to order action or inaction) so it can relieve and deter the environmental problems brought to it. The jurisdiction of the ECT should be as comprehensive as possible. Jurisdiction covers 4 different issues: (a) geographic jurisdiction, (b) subject-matter jurisdiction, (c) level of review and (d) appeal body. All 4 jurisdictions should be as encompassing as possible. Therefore, the research is crucial to understand the possible remedies that the court can give as well as the jurisdiction it can have.  The Environmental Management Agency (EMA) in collaboration with ZELA and with support from the ZIMACE project is implementing a new Project entitled “Audit of Environmental Court Judgments in Zimbabwe. An audit will be conducted on environmental case in Zimbabwe looking at the number of environmental cases filled at district and provincial level, the nature of the cases brought before the courts, the nature of judgments and remedies that are passed in civil cases, uniformity in decisions and an analysis of the trends in the cases. Its key outcome is the strengthening of the environmental justice system to promote the effective adjudication of environmental cases. This will structure the pathway for the establishment of special courts for environmental cases and the model that there should take. In addition, the audit findings and recommendations will make a compelling case for capacity enhancement of actors along the environmental justice service delivery system.

Conclusion

ECTs have become increasingly important as the world is facing the triple planetary crisis. Establishment of ECTs in Zimbabwe and Zambia will lead to effective adjudication of environmental cases, development of environmental rule of law and environmental jurisprudence. Comprehensive research is required to convince relevant stakeholders of the need for and importance of establishing ECTs. Support from governments and other stakeholders is crucial for the success of ECTs. This includes political support, whereby governments confer ECTs with legal authority to work independently, and provide sufficient budget, infrastructure, human resources and security.

[1] United Nations Environment Programme, Environmental Rule of Law: Tracking Progress and Charting Future Directions, 2023

[2] Ibid

[3] United Nations Environment Programme, Environmental Courts and Tribunals – 2021: A Guide for Policy Makers

[4] United Nations, Transforming Our World: The 2030 Agenda for Sustainable Development. Resolution Adopted by the General Assembly on 25 September 2015, 42809, 1-13

[5] Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104.

[6] Constitution of Kenya, secs. 162(2)(b), 162(3), http://kenyalaw.org/kl/index.php?id=398.

[7] CEJ is a non-governmental organization in Zambia whose mandate is to create platforms and processes that promote environmental justice for most vulnerable people in society. Home – Centre for Environment Justice (cejzambia.org)

[1] Republic of Zimbabwe, National Development Strategy 1 January 2021 to December 2025, 2020

[2] Constitution of Zimbabwe Amendment (No. 20) Act, 2013

[3] Section 4 of the Environmental Management Act Chapter [20:27]

[4] Section 162(h) as read with section 174 of the Constitution

[5] Environmental Management Agency’s 2021-2025 Strategic Plan, page 44