LOCUS STANDI – A CONUNDRUM IN ENVIRONMENTAL RIGHTS PROTECTION: WILL THE ANSWER COME FROM THE SUPREME COURT OR CONSTITUTION MAKING PROCESS?
‗A planet in peril‘ this sentiment arose after former U.S Vice-President Albert Gore Jnr advocated for the cause of climate change in his acclaimed biography ‗An inconvenient Truth‘. The words ‗a planet in peril‘ echo resoundingly across the pillars of this earth and everywhere peoples are suddenly faced with the realization that the protection of the environment must form a cornerstone of national and even global policy. It is with this ambition in mind that over the years the world‗s leaders have gathered in the metropolis of the world - Stockholm in 1982, Rio in 1992 and more recently Copenhagen in 2009 to lay out the path for saving our ailing planet. Whilst these conventions have contributed enormously to the cause of environmental protection, Zimbabwe, one feels, has lagged behind in terms of legislative initiative.
One‘s arena of particular interest is that of locus standi - the ability of an individual to use the law as a remedy to enforce the right to a clean and safe environment. This article will focus on the ability or lack of it thereof for private citizens to mount litigation to protect the environment and will aim to show how the stringent provisions existing in our law have proved to be a stumbling block in the enforcement of environmental rights. After an assessment of this, one will point out the possible remedies to this problem. One will look at the possibility that the Supreme Court may do away with the requirements of locus standi as they currently stand or take it upon itself to extend the right to life provision in section 12 of the current constitution to encompass environmental rights. Another solution which will be taken up is the ability of the ongoing constitution making process to include environmental rights in the constitution making them justiciable, as well as an exhibition of the pros of such a move. In furtherance of this, the author will rope in examples of other jurisdictions as supporting proof of the possible solutions that will be offered.
Locus standi in judicio can be defined strictly as legal standing before the courts. A more understandable explanation of this is that it is the ability of a person or organisation to sue or to be sued. In most cases in Zimbabwe one need only be an adult above the age of 18 years old and mentally competent in the case of human beings or to be a duly recognised legal entity in the case of organizations, to be able to be regarded as having locus standi. However, where one attempts to assert their environmental rights the playing field becomes much, much steeper.
Before one proceeds it must be understood that there are two ways that a right is granted. It is either granted through the constitution by its inclusion in the bill of rights or it may be conferred by statute. Environmental rights are nowhere to be found within the constitution and the Environmental Management Act‘s section 41 merely mentions the kind of environment that one is entitled to and the rest of the act goes on to dwell on policy considerations and the framework for environmental protection. The most that it does is to place criminal sanction on water pollution and makes the polluter liable to clean up the pollution and pay compensation to affected third parties.2
In as much as the act tries police pollution and grant victims compensation it seems that only the Environmental Management Agency may launch actions on behalf of the society and impose fines and the average citizen can only claim compensation (where specifically granted such as section 57 of EMA supra). This leaves the act looking like another piece of legislation more concerned with outlining legal aspirations rather than legal accountability. Hence, for citizens the statutory route is limited and the only route open is that of common law, particularly civil action....
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