Challenges and Opportunities in Public Interest Litigation in Environmental Matters in Malawi

Topics: Environmental law, Environmentalism, Procedural law Pages: 29 (9937 words) Published: December 8, 2011

1.0 Introduction:
1.1 Background:
The early 90s saw the Malawi Government embark on a legal reform process in environmental areas. This was part of an effort to arrest the environmental degradation process the country was facing.[1] Recently, the legislature passed the Environment Management Act( EMA).[2] The principle objective of the legislation was said "to provide for a legislative framework for the better protection and management of the environment and conservation and sustainable use of the natural resources of Malawi."[3] One way in which the new piece of legislation attempts to fulfil the said object is the creation of a right for everyone to a clean and healthy environment and, in that respect, it makes provision for controlling and prohibiting pollution, for the establishment of environmental quality standards, and for the environmental planning, environmental impact assessment and environmental auditing, the protection of biological diversity and the ozone layer and inspection and analysis of environmental hazards.[4]

The Act makes provision for the enforcement of this right to clean and healthy environment.[5] An individual can either sue another private person who is violating this right. Alternatively, he or she can commence civil proceedings against a public officer who is supposed to enforce environmental regulations.[6]

1.2 The Legal Framework:
The Constitution of Malawi lays down several principles of national policy that are directory in nature.[7] One of these principles relates to environmental management, and is worded as follows:

The State shall actively promote the welfare and development of the people of Malawi by progressively adopting and implementing policies and legislation aimed at achieving the following goals- [d] The Environment

To manage the environment responsibly in order to-
[i] prevent the degradation of the environment;
[ii] provide a healthy living and working environment for the people of Malawi; [iii] accord full recognition to the rights of future generation by means of environmental protection and sustainable development of natural resources; and [iv] conserve and enhance the biological diversity of Malawi.[8]

The EMA is an attempt to meet this national policy. Specifically it creates the right to a clean and healthy environment.[9] Concomitantly, it also imposes a duty on every person to take all necessary and appropriate measures to protect and manage the environment and to conserve natural resources and to promote sustainable use of natural resources according to the Act and any written law relating to protection and management of the environment or the conservation and sustainable utilization of natural resources.[10] Besides this Act, the African Charter on Human and Peoples Rights states:“[a]ll peoples shall have a right to a general satisfactory environment favorable to their development.”[11]

All these rights are enforceable in the courts of Malawi. This, however, raises another issue what is the content of this right to "a clean and healthy environment" or " a general satisfactory environment "?[12] Such discussion is beyond the scope of this paper. All that the paper discusses are the challenges and opportunities of having the public as part of the environment enforcement mechanism under the EMA. It also makes proposals regarding how legislative and judicial reform can overcome what we consider to be obstacles in the utility of public interest litigation (PIL) as an enforcement mechanism.

1.3 Rationale for Public Interest Litigation(PIL) or Citizen Suit[13] PIL is a response to inefficient enforcement of environmental laws by governmental bodies. The inefficiency may be due to budgetary constraints; political forces; basic inertia; limited staff and simple inefficiency at times caused by bureaucracy.[14] In the Malawian context,...
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