Compiled by George Gapu

INTRODUCTION

In terms of its founding documents, one of the primary objectives of ZELA is the promotion of environmental justice for disadvantaged communities^[1]. Public interest litigation is one of the key strategies long identified as instrumental to achieve this objective. But what is Public Interest Litigation?

In India, one of the leading jurisdictions on advancement of Public interest Litigation, the term has been defined as follows: “The words ‘Public Interest’ mean “an expression which indicates something in which the general public or the community at large has some pecuniary interest, or some interest by which their legal rights or liabilities are affected.” The word ‘litigation’ on the other hand means “a legal action, including all legal proceedings initiated in a Court of Law with the purpose of enforcing a right or seeking a remedy.

Hence, lexically the expression ‘Public Interest Litigation’ denotes a legal action initiated in a court of law for the enforcement of public interest where the rights of an individual or a group have been affected.”^[2]

 It has also been described as meaning “litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon. The court can itself take cognizance of the matter and proceed suo motu or cases can commence on the petition of any public-spirited individual.”^[3]

In Zimbabwe, public interest litigation is largely driven by public spirited individuals. Rarely have cases been reported in which the courts have taken it upon themselves to initiate such litigation. Public Interest Litigation on environmental issues is very rare in Zimbabwe. Until recently, there was hardly any litigation on environmental issues in the country, let alone public interest litigation (PIL) on environmental issues. There are numerous challenges encountered in PIL litigation. Such challenges become even more pronounced in the environment arena. Before analysing the challenges, it is important to highlight the importance of PIL.

SIGNIFICANCE OF PUBLIC INTEREST LITIGATION

PIL plays a key role in any legal system. While virtually all civilized national Constitutions recognize equality of all individuals under the law^[4], economic considerations play a key role in determining the capacity to assert Constitutional rights. The economically disadvantaged sections of society who cannot afford legal representation are often unable to assert their rights through the courts. The citizens with sufficient economic muscle can afford legal representation and are often able to vindicate their rights  in the courts. PIL arose in part to address this disparity. In countries such as India, the courts actively took measures to ensure that a wider section of society had access to the courts. Such measures included broadening the scope of locus standi so that other people or voluntary organisations can take up cases on behalf affected people, especially on environmental issues^[5].  Locus standi generally defines the right to bring a matter to court. 

 In Zimbabwe, the courts have traditionally taken a narrow view of locus standi by requiring that the applicant should have a direct and legal interest in the matter.^[6] The legislature has taken the lead in widening the scope of locus standi in the Constitution and other laws like the Environmental Management Act (Chapter 20;27) of 2003 and  the Access to Information and Protection of Privacy Act (Chapter 10;27).

Section 85 of the Constitution provides inter-alia, that any person “acting in the public interest” is entitled to approach a court alleging that a fundamental right or freedom enshrined in the Constitution has been or is likely to be infringed and the court may grant appropriate relief, including compensation and a declaration of rights.^[7]

Section 4 of the Environmental Management Act (Chapter 20;27) provides that every person has the right to a clean and healthy environment and to protect the environment for the benefit of present and future generations. These environmental rights are now enshrined in the new Constitution which gives them greater legal force.

Section 5 of the Access to Information and Protection of Privacy Act (Chapter 10;27) provides that every person has the right to information that is held by a public body provided that it is not excluded information. This right is now enshrined in the new Constitution. Section 62 provides inter-alia, 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.”

Environmental issues are usually public issues. Atmospheric pollution affects wider sections of communities and not an individual. The destruction of wetlands located in public lands affects the entire community and not an individual. Land and riverine pollution caused by mining companies in rural communities affects entire communities. Any litigation commenced to address these issues is public interest litigation. Under the old regime requiring direct and legal interest in a matter, it would have been difficult for public spirited  individuals to take action in the public interest.^[8]

Most environmental damage occurs in rural communities where the communities are economically disadvantaged. Most rural communities in Zimbabwe depend on subsistence farming and generally live on less than a dollar per day. Such communities would not have the financial resources to obtain legal representation and challenge damage to the environment in their community. PIL at the instance of interested nongovernmental organisations thus becomes vital for the protection of the local environment. It achieves the purpose of enabling the poor and underprivileged communities to realise their fundamental rights and protection of the environment. It enables them to have access to justice.

Catch us next Friday as we unpack interesting public interest litigation cases we have undertaken as ZELA.

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[1] Clause …. of the ZELA Deed of Trust states the objectives of the organisation.

[2] N. Jain, Importance of Public Interest Litigation in India,

Importance of Public Interest Litigation in India

(15 February 2015).

2. http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-41da-aa0b-b4201b77a8bd&txtsearch=Subject: Jurisprud [3] (15 February 2015).

[4] Section 56(1) of the Constitution of Zimbabwe provides that “All persons are equal before the law and have the right to equal protection and benefit of the law.” Similarly, section 9 of the South African Constitution provides for equality of all citizens under the law.

[5] J.Glazewski, Environmental Justice and The Legal Process, JUTA and Co, 1999, page 73.

[6] In Zimbabwe Teachers Association and others v Minister of Education and Culture 1990 (2) ZLR 48 (HC) it was held that “From these authorities it is apparent what the legal approach to the issue of locus standi should be. The petitioners must show that they have a direct and substantial interest in the subject matter and what is required is a legal interest in the subject matter of the action” (page 57).  Also Stevenson v Minister of Local Government 2002 (1) ZLR 498 (S) at p.500.

[7] The new Constitution became law in 2013 and although these provisions have not yet been tested in the courts, there is no doubt that they provide wider scope for interpreting locus standi requirements.

[8] It should be noted that in Catholic Commission for Justice and Peace in Zimbabwe v The Attorney General and Others 1993 (1) ZLR 242 (S) the court allowed a human rights organisation to bring a constitutional matter on behalf of incarcerated inmates on the basis that this fell within the objects of the organisation and the incarcerated inmates were indigent and unable to fund any such litigation. Also Law Society of Zimbabwe and others v Minister of Finance (Attorney General Intervening) 1999 (2) ZLR 231 at p. 234.