Procedural Rights

AuthorEnvironmental Law Institute
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.
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-
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).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT