African Judicial Environmentalism, Community Mobilization and the Quest for Sustainability

By Dr. Caiphas Brewsters Soyapi and Berit Rungenhagen

Africa is a continent rich in cultures, natural resources and biodiversity. But the continent also faces diverse environmental challenges, including pollution, deforestation, and species extinction. In light of these problems, some have come to believe that Africa is inherently incapable of maintaining its biodiversity or achieving sustainability. However, deeper reflection reveals the traditional ecological principles and resource governance approaches that have been put in place by indigenous and rural communities over a long period of time. In our latest public lecture, Dr. Soyapi argues that no system of environmental ethics can survive on a false foundation. As a society, we need to determine what our environmental ethics are based on.

A history of sustainability

African societies have a traditional or indigenous basis for an environmental ethics that should be incorporated into decision-making. In this view, many traditional communities perceive nature as holistic: humans and non-human beings are deeply interconnected and exist in harmony. Ecological principles and traditions draw on a history of sustainability. They also challenge the belief that only scientists and philosophers hold valuable knowledge about ethical perceptions of nature. Dr. Soyapi gave an example from the village where he grew up in Zimbabwe, noting that communities live from local agriculture. In these rural communities, people rely on nature since immediate critical food supplies and medication are typically derived from environmental resources. In conclusion, Dr. Soyapi argued that traditional knowledge can be looked at as a moral compass that Africans can use to find their own response to ecological problems.

In locating the root cause of the historically waning role of traditional knowledge in governance, he noted the persistence of colonial legacies of land exploitation through extractive and agricultural means of production. Unfortunately, the social structures of colonialism involving such models of development, capitalism, urbanization and industrialization, which all constitute enduring social structures and legacies, remain alive in Africa today. This is what Kyle White terms “vicious sedimentation”, a deliberate process where colonial legacies supplant traditional practices to the point where colonial modes of thinking become the accepted mode of operating. Dr. Soyapi concluded that most environmental injustices arise at the point where neoliberal conceptions of development and economic growth collide. This is also where contestations around public participation and exclusion of local people from decision-making processes become apparent.

“African judicial environmentalism”

“It is definitely no surprise”, Dr. Soyapi elaborated, “that the attitude of some governments towards environmental values has been presumptuous and has been manifesting in ways that assume no interest in indigenous knowledge and experiences.” Courts then become the last line of defense for community interests against the immense power wielded by corporations and governments. In many recent rulings, courts have contributed to the idea of “African judicial environmentalism”, which is characterized by more expansive and inclusive interpretations of environmental regulations based on traditional practices and knowledge. Many courts are taking a more assertive role in the settling of environmental disputes and, in doing so, are strengthening the development of a nascent form of African judicial environmentalism in the quest for sustainability.

Through a review of a number of judicial decisions within the Africa context, Dr Soyapi showed that African courts are innovatively mediating disputes, while acting as fora to promote environmental justice. This can be seen, for example, in the East African Court of Justice ruling against the Tanzanian government, where the court found that disruption to wildlife activity cannot be taken lightly in the country’s quest to construct a bitumen road across the Serengeti. Similarly, the Kenyan High Court ruled against the Kenyan government in a case brought against the development of Lamu Port and ordered the government to compensate artisanal fishermen affected by the project.  

Dr. Soyapi concluded that isolated communities must come together to bring their claims forward when development activities threaten their livelihoods: there is power in numbers. Considering that the struggles across the board are about resources, about livelihoods, about recognition and about identity, the framing of issues for judicial contestation will be significant. If communities can show that they directly rely on the environment for their livelihoods, for example, they may be able to show that they have penumbral rights, while also giving their struggle a human face. If there is indeed an inseparable link between communities and their environmental spaces, denying them the right to participate is denying them their rights to dignity and survival.

Dr. Caiphas Brewsters Soyapi is a researcher based at the North-West University, South Africa. His research interests focus primarily on environmental constitutionalism within Africa, where he broadly explores rights-based approaches to environmental protection, the place of international environmental law principles in African courts and African judicial environmentalism.