Compiled by George Gapu
The conversation continues,check last week’s edition here
N. Jain (supra) states that PIL is also important in that it achieves the democratization of access to justice in that wider sections of the population are able to access the courts to enforce their rights. This gives meaning to the equality provisions in the Constitution and militates against discrimination based on economic circumstances.
PIL IN ZELA
The PIL jurisprudence in Zimbabwe
is dominated by judgments dealing with the enforcement of political and civil
Under the old Constitution
there were no economic, social and cultural rights guaranteed in the Bill of
Rights. There were civil and political rights only; right to protection of
property, freedom of assembly and association, right to a fair trial and so on.
When ZELA was formed in 2001, the
old Constitution was still in place. Encouraged by such judgments as the
Catholic Commission for Justice and Peace (supra) which recognised that a human
rights organisation has locus standi to bring to court a matter involving the
violation of human rights, ZELA believed
that it could do the same with environmental issues.
The bigger motivation for
commencing PIL in ZELA was however the realization that no one was giving
attention to environmental violations affecting economically disadvantaged
communities mostly located in the rural areas. These communities find
themselves at the receiving end of environmental damage caused by mostly mining
companies operating in their areas. They do not have the financial resources to
engage lawyers to institute legal proceedings on their behalf.
Although there were many
established human rights organisations at
the time that ZELA was formed, there was no organization that was focusing on
environmental issues. Mining companies operating in areas like Mutoko district
were reportedly causing massive environmental damage while the environmental
regulatory authority, the Environmental Management Agency (EMA), was seemingly
powerless to address the situation.
There was huge demand for
litigation services once ZELA started interacting with the communities. In
areas like the diamond rich Marange district, communities faced incessant
harassment from security forces trying to stamp out illegal mining and trading
in the alluvial diamonds. Human rights violations ranged from unreasonable
restrictions on freedom of movement and association, forced relocations and
unprovoked assaults. In addition, there
was massive environmental damage caused by the mining companies ranging from
water pollution to land degradation. In high density urban suburbs the most
common problem has been poor sanitation and lack of clean drinking water.
Due to resource limitations the organisation decided to focus on
litigation which would achieve the greatest impact for the public good. This
was the main consideration in deciding the cases to be taken to court.
One of the first cases taken on by
ZELA pertained to poor sanitation in Chitungwiza’s Manyame Park suburb.
Untreated sewage flowed freely through the streets in sections of the suburb
posing a serious health hazard to the inhabitants especially children. A
residents association was identified in the suburb and a court application was
prepared with the association as the applicant. The
relief sought was for an interdict compelling the local authority
to contain the sewerage problem. The High Court granted the order. On
enforcement, the local authority pleaded that it did not have the financial
capacity to provide a lasting solution to the problem. ZELA advised the
applicant to file contempt of court proceedings but the applicant was reluctant
to do so. In the absence of instructions from the
association, ZELA could not take the case any further. In the end it is the
local residents who did not get the benefit of the High Court order.
In December 2009 ZELA received
instructions from some residents in the Chiadzwa community to stop their forced
relocations from the Chiadzwa communal lands until they received adequate
compensation and an environmental impact assessment conducted. Chiadzwa is in
the heart of the diamond fields located in the Marange district, Manicaland
province. The villagers had simply been
informed that they would be relocated within 48 hours to pave way for mining
companies. They had not been consulted about any compensation and the
suitability of the accommodations prepared for them at the destination. The
villagers were not aware of any environmental impact assessment (EIA) having
been conducted prior to the commencement of mining activities in accordance with
ZELA filed an urgent chamber application on behalf of a local residents
association for an interdict to stop the forced relocations until issues of
compensation and facilities at the new site had been clarified. The applicant
also wanted an EIA to be conducted for the mining activities.
The respondents were the mining companies, the Minister of Local Government and
National Housing and the Minister of Mines. The respondents opposed the
application. The Minister of Local Government opposed the application on the
basis that his ministry was overseeing the construction of modern houses and
facilities including clean water and irrigation facilities. It was submitted
that the mining companies had put together a sizeable fund for the construction
of the facilities and that the relocated families would have better facilities
than they had in Chiadzwa. The companies
argued that they had already conducted their EIAs. It was further argued that
the villagers had delayed in filing the application and accordingly it was not
The court dismissed the application
on the basis that it was not urgent. It was held that the villagers had known
of the intended relocations long before the application was filed at court. It
was also held that as indicated by the Minister of Local Government, there was
a programme in place to ensure that the interests of the affected villagers had
been taken into account since no one was going to be evicted until all the
facilities had been put in place. Although the application was dismissed, it
achieved the desired effect in two ways. Firstly, no one was in fact evicted
from Chiadzwa during that month. In fact, people were evicted over a year later
after the houses had been constructed. Secondly, for the first time the affected
villagers obtained information about the government’s plans for them. They got
to know the benefits being promised, the facilities being put in place and how
compensation would be calculated per household affected. They also got to know
that the companies had in fact clandestinely conducted EIA processes by
interviewing selected inhabitants who supported the mining activities.
In 2011 ZELA decided to test the
access to information law.
It formally requested copies of mining contracts for companies mining in
Chiadzwa from the Ministry of Mines and the Zimbabwe Mining Development
Corporation (ZMDC). The request was ignored. In September 2011 the organisation
filed an application for review at the Zimbabwe Media Commission which is
mandated to deal with such matters.
Despite verbal assurances that the application would be adjudicated upon, the
Commission is yet to decide the matter.
In July 2012 a scientific study
commissioned by ZELA showed that three diamond mining companies operating in
Marange diamond fields were polluting rivers flowing through the area by
discharging mine waste and effluent into the environment in breach of
environmental laws and the companies’ own EIA plans. The waste and effluent
were being discharged directly into local rivers such as Singwizi, Save and
Odzi. The pollutants caused the rivers to become silted, muddied, dirty and
toxic. The local community members rely
on the rivers for drinking water, watering their livestock, gardening and other
domestic uses. The people could no longer use the river for such purposes
especially at the peak times when the discharges were made. People were losing
livestock as a result of the toxic chemicals in the rivers. Diseases related to
the toxins such as cancer, cholera, typhoid and skeletal fluorosis threatened
The community instructed ZELA to approach the
courts for an order stopping the pollution of the rivers. The organisation
commissioned some experts to conduct a scientific study into the causes of the
pollution and the effects of the pollutants. Armed with the report which showed
that the companies were responsible, the organisation commenced court action in
August 2012. The mining companies defended the claim. They raised a special
plea of non joinder of the Environmental Management Agency and an alleged
failure to request the Agency to deal with the matter as the regulatory
The matter was argued on 5 November 2013 and judgment has not yet been passed
by the court.
The cases taken up by ZELA have
shown that there are challenges in litigating on environmental issues in
Zimbabwe. Firstly, access to information is still denied by the authorities
despite the existence of AIPPA, the Environmental Management Act and the new
Constitution. The offices of the Environmental Management Agency flatly refuse
to make public the EIA reports of the mining companies despite the fact that
such documents are supposed to be in the public domain. Letters requesting
access to the documents are simply ignored. It means that local communities
have to approach the courts to compel the Agency to disclose the documents
before they can access them.
Secondly, the fees charged by the
Agency to access EIA documents are prohibitive to most people. The Agency
charges a flat fee of US$250.00 to peruse the documents at their offices. They
do not allow copies to be made. The fees were statutorily gazetted in the
Environmental and Natural Resources Management (Environmental Impact Assessment
and Ecosystem Protection) (Amendment) Regulations 2011 (No.1), Statutory
Instrument 3 of 2011.
This is unaffordable to inhabitants of rural areas who are mostly affected by
projects for which EIAs are prepared.
The requirement that no copies can
be made and that the documents must be inspected in the offices of the Agency
not only limits access to information, but it can be intimidating to
individuals from local communities. On 28 July 2011 ZELA formally wrote to the
Environmental Management Agency and the Minister of Environment requesting them
to reduce the access fees on the basis that they effectively prohibited access
to the EIA documents. The letter was ignored. It is possible to challenge the
fees prescribed in the Regulations. It is arguable that the Regulations violate
section 62 of the Constitution.
It has been held that “Where such a
power (ie to fix licence fees) is given the Court cannot interfere on the mere
ground that it considers the fee unreasonably high. The size of the fee,
however, might in certain circumstances be a factor in considering whether the
Council genuinely exercised its powers of licensing and regulating, or mala
fide used such powers for achieving an ulterior object such as prohibition. For
instance, the Council might prescribe a licence fee so outrageously high that
the only reasonable inference was that the object was to prohibit the business
in question entirely.”
It can be argued that the prescribed access fees are so high and the access
conditions so onerous that the object of the Agency is to prohibit the exercise
of the right.
Thirdly, there are inherent delays
in the time taken to resolve matters in court. In Zimbabwe, it generally takes
about two years for a matter to be determined in the High Court. In some cases,
it can take more than a year before a judgment is passed.
There is no time frame within which a court must pass judgment after hearing a
matter. These delays are frustrating for the community which will be living
with the effects of the environmental harm.
Obtaining relief on an urgent basis
in PIL cases presents peculiar challenges. The flow of information is not
always efficient because the environmental damage invariably occurs in rural
and outlying areas. It takes time for matters to be reported to ZELA. Some
investigation must then be done by the organisation before the matter is filed
in court. By the time an urgent application is made in court, there will be
sufficient delays to warrant the matter being dismissed on the basis that it is
The requirements for urgency are
very strict. The approach taken by the courts has been described as follows:
“If by its nature the circumstances are such that the matter cannot wait in the
sense that if not decided immediately irreparable prejudice will result, the
court can be inclined to deal with that on an urgent basis. Further, it must be
also clear that the applicant did on his own part treat the matter as urgent.
In other words if an applicant does not act immediately and waits for doomsday
to arrive and does not give a reasonable explanation for the delay in taking
action, he cannot expect to convince the court that the matter is indeed one
that warrants to be dealt with on an urgent basis.”
Judges in Zimbabwe have limited
training in environmental law. The subject was not taught in Zimbabwean law
schools until the late 1990s. The limited number of environmental cases in the
courts also ensures that there is limited experience in dealing with such
cases. The result is that there is limited jurisprudence on environmental law.
Zimbabwean judges have not
benefitted from training programmes conducted by international institutions
such as the United Nations Environment Programme (UNEP) and
the Environmental Law Institute. Such training programmes help the Judges in
keeping abreast not only with current trends and developments in environmental
aw but also with international principles such as the polluter pays principle,
precautionary principle, principle of
intergenerational equity, and the preventive principle. These principles are
now firmly entrenched in the Zimbabwean Constitution and
the Environmental Management Act.
Courts in other jurisdictions such as India
have applied and developed such principles and Zimbabwean Judges would benefit
from such exchanges.
ZELA has not been able to take up
some significant PIL cases due to budgetary constraints. As a nonprofit
organisation relying primarily on donor funds, the cases which can be taken up
are determined by the financial resources available for litigation at any
particular time. This handicap has generally ensured that the organisation
cannot take up many significant cases brought to its attention much to the
frustration of the affected communities. Most nonprofit organisations involved
in PIL such as the Zimbabwe Lawyers for Human Rights and the NGO Forum are
primarily concerned with civil and political rights issues. ZELA requires
increased litigation funding to deal with PIL cases in the environment sector.
There are few lawyers in Zimbabwe
with an interest in environmental issues. ZELA cannot do it alone. There is
need for environmental issues to be discussed in the broad legal profession in
the country so that the pool of lawyers interested in and able to deal with
environmental cases can be increased. There is need for more lawyers to be
involved in environmental PIL. An analogy can be drawn with the work of the
established Zimbabwe Lawyers for Human Rights. It has got an established PIL
It funds PIL by members in private practice on human rights issues where there
are alleged violations. It funds dozens of PIL cases filed in the courts every
year and actively encourages its members to take up such cases. ZELA can adopt a similar approach by engaging
the legal profession and sharing experiences and skills on environmental
ZELA’s reach in dealing with PIL
cases is also limited by its inadequate personnel. The organisation has got
only 4 lawyers who are fully involved with other projects. It has got offices
in Harare only from which it serves communities in outlying areas like Mutare,
Zvishavane, Mutoko, Ngezi, Marange and others which are hundreds of kilometres
away. This hampers access to and by the communities and increases the cost of
engagement. The organisation needs to establish offices in other strategic
towns in order to boost its capacity to respond efficiently to cases brought by
There is no doubt that PIL on
environmental issues can play a significant role in uplifting the livelihoods
of affected disadvantaged communities in Zimbabwe. It is the only way that such communities affected by pollution issues for instance, can have access
to the courts. It is also the only way that industries operating in poor
communities can be brought to account for their omissions and commissions. The
huge demand for legal representation from affected communities is a clear
indication that PIL can play a key role in promoting access to justice.
Furthermore, it ensures that environmental matters are brought into mainstream
disputes ordinarily dealt with by the courts.
ZELA needs to strengthen its PIL
work. There is need to have a dedicated PIL programme for the organisation.
This ensures that there is a programmatic and structured approach to the PIL
work of the organisation. Having a separate programme ensures that there is a
clear strategy that is developed for the PIL work. It also ensures that efforts
are made to have sustained litigation cases in the courts and not the few cases
handled so far.
It has been observed that for PIL
to succeed in achieving social impact there must be a coherent long term
strategy and not reliance on “one shot” success. Real impact may be achieved by a series of
cases filed in the courts. Repeated litigation on a particular issue develops
expertise in the area and the organisation can “enjoy economies of scale and
low start up costs in litigation.”
There is therefore need to increase the number of environmental cases taken to
court by the organisation.
It is not adequate for the
organisation to raise PIL funds as incidental to other projects. The PIL
programme must raise its own funds for its activities which would include
investigations, research and counsel’s fees. PIL work for the organisation
usually suffers due to limited funds being available.
There must be litigation lawyers
working in the department who can readily attend to cases as they arise. The
ability of the organisation to recruit and retain qualified and competent
personnel is directly affected by its ability to pay competitive remuneration.
This is a key factor for the success of the programme.
The organisation should consider
decentralizing so that it can more accessible to its key stakeholders; the
disadvantaged communities. It would be ideal if the organisation establishes
offices in other towns like Mutare and Gweru which are closer to the mining
communities where most issues arise.
The enhancement of the capacity of
the judiciary needs to be addressed. Zimbabwean Judges have lagged behind in
receiving training on environmental issues and their adjudication. ZELA can
work with experienced organisations like UNEP and ELI to train the local
judges. In addition, experience sharing exchanges with Judges from other
countries with more experience in
dealing with environmental litigation can also be organized by the
organisation. This would enhance the capacity of local courts to deal with
environmental cases and apply international principles of environmental law.
Capacity development to deal with
environmental matters must also extend to lawyers in private practice and state
lawyers. ZELA must strive to build a network of lawyers in private practice who
have an interest and capacity to handle environmental litigation. The process
can start by bringing environmental litigation into the mainstream agenda for
the lawyers body in Zimbabwe, the Law Society of Zimbabwe. Matters which the
organisation cannot handle would be referred to such lawyers. Through the
network, the lawyers can also foster collaboration and cooperation.
On the demand side, ZELA has done
some solid work in building the capacity of rural communities. It has
facilitated the formation of community based organisations (CBOs) and assisted
them with start up funds and training on running a CBO. It has assisted them to
establish networks with similar organisations in the country and in the region.
The CBOs have a good appreciation of issues and community rights.
ZELA pioneered the introduction of
PIL in environmental matters. Previously, PIL had been confined to civil and
political rights matters. The dearth of jurisprudence on environmental law
shows the extent to which such issues are peripheral in the Zimbabwean legal
system. There is need to build on the movement started by the organisation.
This can be done by ZELA improving its capacity to handle PIL matters. ZELA
cannot however do it alone. It is necessary that there is a wide spread of
lawyers with an interest in handling environmental litigation. Training is
needed to build the capacity of the lawyers. The training should spread to the
judiciary as well. Such training would provide the infrastructure required to
improve access to justice by all citizens through PIL.
surprisingly, most reported judgments on PIL such as the CCJP case (supra) deal
with these rights.
Zimbabwe adopted a new Constitution in 2013 which was overwhelmingly endorsed
in a national referendum. The new constitution replaced the Lancaster House
Constitution which had been in place since independence in 1980.
such as Zimbabwe Lawyers for Human Rights, Zimbabwe Human Rights Association,
NGO Forum, Zimbabwe Association of Doctors for Human Rights, Women of Zimbabwe
Arise, Transparency International Zimbabwe, Amnesty International (Zimbabwe)
and so on were already established in 2001.
Workshops subsequently held in Mutoko and other areas confirmed that EMA’s
capacity to deal with the challenges in the districts was severely hampered by
a lack of resources for its country officers. Some of the mining companies
roped in politically influential local individuals who ensured that mining
operations were not hampered by the Agency.
The prescribed statutory fines were also not deterrent enough to the
association was called Manyame Park Residents Association.
Chitungwiza Town Council was cited as the respondent in the court application.
emerged that when the interdict application was filed, the local authority was
under the control of one political party. By the time that the interdict was
granted and contempt of court proceedings were mooted, the local authority was
now controlled by another political party. The residents association,
apparently being aligned to the party then in charge, were reluctant to
embarrass the party by filing the contempt of court proceedings.
terms of the Environmental Impact Assessment (Ecosystem Protection)
Regulations, Statutory Instrument no. 7 of 2007, local communities are supposed
to be consulted in the process of conducting an environmental impact
assessment. The communities alleged that there had been no consultation
whatsoever even though mining activities were already underway. The
Environmental Management Act (Chapter 20;27) provides that no mining project
should commence until an EIA certificate has been issued by the Environmental
Management Agency after receiving an EIA report for the project.
97 of the Environmental Management Act (Chapter 20;27) provides that no mining
activity shall be conducted before an EIA has been conducted.
 THE EIA
reports for the mining companies are still inaccessible although they are
supposed to be public documents.
Access to Information and protection of Privacy Act (Chapter 10;27) (AIPPA)
54 of AIPPA.
Zimbabwean administrative law, there is a general requirement that one must
exhaust internal remedies before approaching the courts. The Agency does not
however, have adjudicating functions under the Environmental statute.
 It must
be noted that the fees for appealing against a decision of the Agency to the
Minister is US$240.00. This should be compared against the cost of filing an
appeal to the Supreme Court from a decision of the High Court which is US$5.00.
62(2) provides 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
Television Users Association v Posts and Telecommunications Corporation
1991 (2) ZLR 226 (HC) at page 233.
instance, the special plea in the Chiadzwa river pollution case was heard in
November 2013 and despite several follow ups, judgment is yet to be passed.
Investments (Pvt) Ltd v Ace Property and Investments Company (Pvt) Ltd
HH120/2002. AlsoMoxon and
another v Chikamhi and another HH2951/09; Mariyapera v Eddies Pfugari
and Another HH203/13; Graspeak Investments (Pvt) Limited v Delta
Corporation (Pvt) Limited and Another 2001 (2) ZLR 551 (H) at p.555A-D,
has a programme for training judges and other judicial stakeholders in Africa
through its Division on Environmental Law and Conventions (DELC). It has
conducted training sessions in Nairobi, Kenya for East African Judges. See
United Nations Environment
(18 February 2015)
73 of the Constitution
generally section 4 of the Act. For instance, section 4(2) of the Act provides
(f) anticipated negative impact on the
environment and on people’s environmental rights shall be prevented, and where
they cannot be altogether prevented , be minimized and remedied;
(g) any person who causes
pollution or environmental degradation shall meet the cost of remedying such
pollution or environmental degradation and any resultant adverse health
effects, as well as the cost of preventing, controlling or minimizing further
pollution, environmental damage or adverse health effects;”
generally Ashok H. Desai, Public Interest Litigation: Potential and Problems,
published in B.N. Kirpal, Supreme but not infallible-Essays in Honour of the
Supreme Court of India, New Delhi, Oxford University Press, 2000, http://www.ielrc.org/content/a0003.pdf
(18 February 2015)
 www.zlhr.org.zw (20
Marcus,” A Strategic Evaluation of Public interest Litigation in South Africa”.
The Atlantic Philanthropies. http://www.atlanticphilanthropies.org (20
Marcus op cit, p 128