Compiled by Michelle N Chitando

      Background

      The Ministry of Environment, Climate, Tourism and Hospitality Industry sought Cabinet approval of the Climate Change Bill which will provide for the management of climate change through climate change mainstreaming, climate change risk and vulnerability assessments, coordination and implementation of adaptation actions, and integration of responses to climate change and its impacts across all sectors.[1] The principles of the Bill include the establishment of a Climate Change Authority of Zimbabwe; regulatory framework for enhanced climate change mitigation and adaptation actions; finance mechanisms for increased resilience and promotion of low carbon development; measures to mainstream climate change; and the establishment a carbon trading regulatory framework.[2] This is a laudable move as it sets the ball in motion for the development of a climate change law in Zimbabwe. The move is further in line with the founding value of good governance that is found in the Constitution of Zimbabwe Good governance principles entail efficiency, effectiveness, inclusivity, participatory, responsiveness and accountability.[3] To achieve good governance in the sphere of climate change, there should be laws enacted to facilitate this process.

      Compelling evidence shows that well-crafted laws and policies can go a long way in addressing climate change-associated risks. These risks have had devastating impacts on the economies of many countries. Zimbabwe has not been spared crop failure, flooding, and disasters (evidenced by Cyclone Idai). The Zimbabwean Climate Change Bill should aim to be clear, precise, and not have any ambiguities or inadequacies.[4] To accomplish this, goals should be set for the proposed legislation, which is evident in the principles set out for the Bill. This process helps identify legislative solutions to existing climate change mitigation and adaptation problems. It can further be enhanced by assessing the extent to which the anticipated law will be in harmony with international legal instruments, the national context within which the law is to be applied and looking at what other jurisdictions have done to draw lessons that can be emulated in Zimbabwe.

Lessons from other jurisdictions

      The United States of America

Countries such as the United States have enacted legislation that can be beneficial as lessons for Zimbabwe. Through the Inflation Reduction Act of 2022, the United States put in place actions to combat climate related issues through rebates and tax credits for rooftop solar systems, electric vehicles and home upgrades that include appliances that are energy efficient. Through this law, greenhouse gas (GHG) emissions are expected to rapidly reduce by 2050. The United States has attached a monetary value to the damage and benefits attached to varying GHG levels. This evaluation has helped understand and motivate the reduction of GHG. This was incorporated by federal agencies from as far back as 2008. By application of the Inflation Reduction Act, it is anticipated that the country could cumulatively benefit between $0.7 and $1.9 trillion by 2015 achieved through reduced costs of damage caused by natural disasters, and other costs resulting from rising temperatures.[5] The Act includes numerous investments in climate protection, including tax credits for households to offset energy costs, investments in clean energy production and tax credits aimed at reducing carbon emissions.[6] For the United States, the enactment of the Act potentially cancels inconsistent rhetoric on climate change. For Zimbabwe, the development of a climate change law will pave way for the full implementation of the Paris Agreement, the United Nations Framework Convention on Climate Change and other climate change-related international and regional frameworks.

Kenya

Like other African countries, Kenya is vulnerable to the devastating effects of climate change. In response, Kenya became a pioneer in enacting climate legislation. The Climate Change Act of Kenya was promulgated in 2016. The country signed the UNFCCC in 1992 and further ratified it in 1994. In addition to the climate change law, Kenya has a National Climate Change Response Strategy (NCCRS) which provides for a climate smart development pathway as part of achieving its Vision 2030 of industrialising and becoming a middle-income country by then.[7] Commendable in the Kenyan scenario as with Zimbabwe is the grounding of environmental considerations in its Constitution which paves way for crafting of subsidiary legislation in line with constitutional provisions.[8] The Climate Change Act of Kenya  creates a high level advisory body called the National Climate Change Council comprising of representative from government, the private sector, academia and marginalised communities.[9] It further confers additional powers to existing entities to deal with climate change rather than creating a whole separate body to deal with climate change which might result in delays in that new body becoming fully operational and/or functional.

Uganda

The National Climate Change Act of Uganda is another jurisdictional legislative framework that Zimbabwe can draw lessons from. The Act came into force in 2021 and is aimed at giving he force of law in Uganda to the United Nations Framework Convention on Climate Change, the Kyoto Protocol, the Paris Agreement and to provide for climate change response measures.[10] It also is designed to provide for institutional arrangements for coordinating and implementing climate change response measures in Uganda.[11] What can be gleaned and emulated from this Act is that it gives clear time frames to put into operation certain actions that are necessary for climate action. Section 5 (1) provides that the department shall within one year of the commencement of the Act develop a framework strategy on climate change for Uganda. This important in that it provides legal backing to what would ordinarily be merely policy. This facilitates accountability on when actions should have been taken or progress towards set targets. The Act further provides for climate change financing and the purposes for climate finance.[12]

Section 22 of this Act makes provision for incentives for those engaged in climate actions. Incentives enable the scaling up of efforts across sectors which can help in climate change adaptation and mitigation. The specific provision on litigation on climate change is notable in the Ugandan climate change law. It states that a person may seek relief with the High Court of Uganda where actions or omissions by the government, private entity or an individual may threaten efforts towards climate change mitigation or adaptation. It also guides the court in the form of orders to be given in such cases.[13] Climate litigation is a critical instrument that can be used to enforce or enhance climate commitments and accelerate climate action. This is a key point for Zimbabwe which can be included in the Climate Change Bill.

Recommendations for Zimbabwe

1. It is necessary to ensure that the Zimbabwean climate change law makes provision for adequate public participation to guarantee that climate change actions are inclusive.
2. There should be stakeholder engagement in the implementation of provisions in the anticipated law. This will help promote transparency and accountability.
3. The inclusion of climate litigation can help enforce climate change commitments in Zimbabwe. The intended Act or legislation, must include aspects of climate litigation as a tool to enforce the climate change commitments by the GoZ and private sector as well as an effective accountability tool
4. There is a need to begin to quantify the economic cost of climate change in Zimbabwe. This can inform provisions related to tax credits in climate-related legislation.

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[1] Memorandum To Cabinet on the Principles of The Climate Change Bill by the Minister of Environment, Climate, Tourism And Hospitality Industry, Honourable N. M. Ndhlovu, MP

[2] Ibid

[3] UN Economic and Social Commission for Asia and the Pacific (ESCAP), What is good governance

[4] Memon et al, Manual for Legislation Drafting: A Primary Guideline for Legislative Drafters, 2017 p.g 1

[5] https://www.whitehouse.gov/wp-content/uploads/2022/08/OMB-Analysis-Inflation-Reduction-Act.pdf

[6] https://www.forbes.com/advisor/personal-finance/inflation-reduction-act/

[7] Republic of Kenya, National Climate Response Strategy

[8] Article 42 of the Kenyan Constitution guarantees the right to a clean and healthy environment, including the right to have the environment protected for the benefit of present and future generations.

[9] C Wambua, The Kenya Climate Change Act 2016: Emerging Lessons from a Pioneer Law, Climate Change Carbon & Climate Law Review Vol. 13, No. 4, EVOLVING AFRICAN CLIMATE CHANGE LAW AND REGULATION (2019), p. g 260

[10] See the National Climate Change Act of Uganda of 2021

[11] Ibid

[12] Ibid footnote 9, Section 21

[13] Ibid footnote 9, Section 26