Procedural Rights

• Author: Environmental Law Institute
• Pages: 51-79

IV. Procedural Rights

In addition to providing a variety of substantive rights to life and a healthy

environment, virtually all constitutions of African states provide proce-

dural rights that can be indispensable in implementing and enforcing those

substantive rights. These procedural rights provide civil society with

mechanisms for learning about actions that may affect them, participating

in governmental decisionmaking processes, and holding the government

accountable for its actions, as well as enabling civil society to bond to-

gether to protect the environment by exercising these procedural rights.

The rights discussed in this part fall generally into four categories:

(1) freedom of association; (2) access to information; (3) public partici-

pation in decisionmaking; and (4) access to justice (including recogni-

tion of locus standi and explicit recognition of public interest litigation).

Other rights—such as the freedom of opinion, expression, and the

press—can be relevant to environmental advocacy and governance and,

thus, merit further investigation.

A. Freedom of Association

Freedom of association is fundamental for environmental advocacy. By

forming and participating in NGOs, individuals can come together to

more effectively advocate for environmental protection.154 With the sup-

port of an organization and the corresponding strength in numbers, peo-

ples’fears of retaliation can be allayed and they are more likely to take an

active role in matters that affect them, including natural resource and en-

vironmental management. By joining with others in an association, citi-

zens can have a stronger say in these matters; and many people speaking

together with a single, clear voice can be more effective. Similarly,asso-

ciation allows for economies of scale, as financial, technical, and labor

costs are shared among the members, enabling them to participate collec-

tively where it would be prohibitively expensive for them to act on an is-

sue individually. Finally, associations can focus on a particular issue,

drawing upon their members as needed, enabling the members’ interests

to be advanced in ways that would be impossible for individuals to do on

their own.

51

154. See,e.g., National Ass’n for the Advancement of Colored People v. Alabama ex

rel. Patterson, 357 U.S. 449, 460 (1958) (“Effective advocacy of both public and

private points of view, particularly controversial ones, is undeniably enhanced by

group association....”).

In fact, all of the African nations ensure the right of their citizens to as-

sociate to promote their business, personal, or other interests. The provi-

sions of a few countries’ constitutions, such as Angola’s,155 suggest that

this right might be limited to professional or trade unions, but this is dis-

tinctly a minority position.

The breadth and strength of a constitutional right of association may

depend upon national laws that prescribe the terms for its exercise. Ap-

proximately half of the constitutional provisions grant the right subject to

“conditions fixed by law” or a similar “claw-back” clause (so named be-

cause it “claws back” some of the rights otherwise granted in the provi-

sion). The overwhelming number of claw-back clauses are found in civil

law constitutions. While a claw-back clause may diminish the strength of

the freedom of association because it explicitly enables legislation to fix

limits on the right, in practice those limits may not be much more than the

reasonable limitations implied in other kinds of provisions.156

Notwithstanding the recognized value of and need for the right of as-

sociation, many African organizations operate with the fear that they will

be deregistered if they criticize the government. For example, Zimbabwe

had a Private Voluntary Organisations (PVO) Act, which granted the

Minister of Public Service, Labour, and Social Welfare the power to sus-

pend the entire executive board of an NGO without providing a reason

and then to appoint a new executive board until the next election. In 1995,

the minister suspended Sekai Holland, Chairperson of the Association of

Women’s Clubs, as well as 11 others. The executive board sued the

minister, claiming that the operative section of the PVO Act was uncon-

stitutional and therefore ultra vires.Specifically, they alleged that the Act

infringed on their civil rights without affording them a fair hearing,157 un-

52 CONSTITUTIONAL ENVIRONMENTAL LAW

155. Article 33 of the Constitution of Angola provides: “The People’s Power Assemblies

are the highest organs of the State at each politico-administrative level in the coun-

try. The People’s Power Assemblies are constituted by elected deputies who shall

answer to the people in the exercise of their mandate.” Const. art. 33 (Angola).

156. Cf. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 n. 17 (1982) (sug-

gesting that reasonable “limitations on the right of access [to information] that re-

semble [permitted] ‘time, place, and manner’ restrictions on protected speech”

might be constitutional).

157. Article 18(9) of the Constitution of Zimbabwe states: “Subject to the provisions of

this Constitution, every person is entitled to be afforded a fair hearing within a rea-

sonable time by an independent and impartial court or other adjudicating authority

established by law in the determination of the existence or extent of his civil rights

or obligations.” Const. art. 18(9) (1979) (Zimbabwe).