PUTTING AFRICA ON THE STAND: A BIRD'S EYE VIEW OF CLIMATE CHANGE LITIGATION ON THE CONTINENT.

• Author: Kotze, Louis J.

1. INTRODUCTION 616 II. LITIGATING CLIMATE CHANGE: A SYNOPSIS 620 III. LITIGABLE CLIMATE CHANGE CONFLICTS IN AFRICA 628 IV. COUNTRY ANALYSIS 633 A. South Africa 634 B. Nigeria 643 C. Uganda 651 V. CONCLUSION 657 I. INTRODUCTION

   Climate change litigation is a relatively recent addition to the broader portfolio of environmental judicial dispute resolution. However, it is a valuable addition that has been "transformed from a creative lawyering strategy to a major force in transnational regulatory governance of greenhouse gas emissions." (1) This specialized form of litigation has its roots predominantly in the United States, a country that also boasts the highest number of climate change cases. (2) Outside of the United States, the bulk of climate change litigation is in countries such as Australia, New Zealand, Canada, Germany, Spain, and the United Kingdom, (3) with landmark and highly publicized cases such as Urgenda Foundation u. Kingdom of the Netherlands (4) and its recent appeal, decided in the Netherlands. (5) By comparison, fewer (although often ground-breaking) (6) cases have been litigated in developing countries such as India, Micronesia, Philippines, Brazil, Colombia, Ecuador, and Pakistan. (7) Lagging substantially behind these and other regions in the world is Africa, which is surprising considering the continent's size that spans 54 independently recognized states and the high levels of vulnerability of its people and ecosystems to climate change. In tandem with, and possibly consequential on the muted incidence of climate law cases, is the lack of extensive Africa-focused climate change litigation scholarship. This void is especially stark when compared to the burgeoning scholarship focusing on other regions, with Africa and its few cases often mentioned only in passing, and the surrounding doctrinal issues being pushed to the periphery of scientific interest. A recent study concludes "while the number of legal cases in the Global South has been growing in quantity and importance (e.g., Pakistan, India, the Philippines, South Africa, Colombia, and Brazil), these are yet to receive much scholarly attention." (8)

   This is, however, not to say that courts in Africa have not been playing an important and often active role in mediating environmental conflicts on the continent. The lack of the rule of law, judicial independence, and access to courts have led to numerous and legitimate concerns in some African countries; however, many litigants and domestic courts in Africa have been innovatively engaging with broader environmental and related socio-economic disputes over the years--at times, with trailblazing and precedent-setting effect. (9) For example, the African Commission on Human and Peoples' Rights (ACommHPR), in its widely celebrated Social and Economic Rights Action Center (SERAC) Communication, was the first judicial forum globally to pronounce, in detail, a regional right to a healthy environment and related rights in the African Charter on Human and Peoples' Rights of 1981 (ACHPR). (10) According to the Communication, the military government of Nigeria had been directly involved in oil production through the state-owned Nigerian National Petroleum Company, and those operations caused environmental contamination, which led to health problems among the Ogoni people (an indigenous community). (11) A significant hallmark of the Communication is the ACommHPR's elaboration of a range of qualitative standards of human rights obligations that the Charter's right to a healthy environment creates, manifesting at "four levels of duties for a State that undertakes to adhere to a rights regime, namely the duty to respect, protect, promote, and fulfill these rights". (12) Another example is human rights case law emanating from South African courts, which is often considered a model elsewhere on the continent and in the world based on the judiciary's creative engagement with environmental and related socio-economic rights issues. (13)

   Civil society activism in some African countries is also increasingly playing an important role in holding governments to account for environment-related human rights abuses. The increased involvement of environmental non-governmental organizations (NGOs) in litigating environmental harms, and their limited but steadily growing success, is a case in point. (14) An example is the victory of the Social and Economic Rights Action Center and Center for Economic and Social Rights in their actio popularis against the Nigerian government and Shell Petroleum Company in the SERAC Communication. (15) Given this trend, and considering that civil society actors often champion climate change conflicts and their litigation, one would have expected a much higher incidence of and frequency in climate change litigation on the African continent.

   Africa is among the regions of the world projected to suffer most from the impacts of climate change while being the least able to adapt to its impacts and to bolster the resilience of people and ecosystems to changing climatic conditions. (16) Africa is thus particularly susceptible to climate change conflicts arising in many socio-economic and environmental contexts, leading one intuitively to expect that such conflicts, including those that are predisposed to be litigated in court, will emerge much more frequently than is the case. In response to climate change on the continent, a considerable number of African countries has ratified the Paris Climate Agreement, (17) and numerous African countries have developed environmental and climate change policies and laws, (18) suggesting that at least some public and private sector legal obligations do exist regarding climate change. As is the case elsewhere around the globe, it is highly unlikely these obligations are always diligently observed in their entirety by everyone, everywhere, thus presumably providing the legal foundation, including remedies, to adjudicate matters and conflicts that arise from non-observance of such obligations. Yet, judging from the absence of climate change litigation on the continent, it does not appear as if the available domestic legal and policy frameworks have been utilized to their full extent and force.

   While a thorough study of the reasons behind the lack of climate change litigation in Africa is undoubtedly a worthwhile project, it is not one we pursue here. We instead aim to offer the first in-depth comparative survey of climate change litigation in Africa. Drawing from a wealth of existing literature on this issue, the analysis in Part II, immediately below, is set against a characterization of current trends in and forms of climate change litigation emerging the world over. Part II also includes a brief assessment of the climate change conflicts usually litigated, and the challenges and advantages associated with this specialized form of litigation.

   Part III of this Article then discusses the unique nature of climate change impacts in Africa and assesses how this may shape the litigable climate change conflicts that might arise on the continent.

   Part IV analyzes in some detail three climate cases in South Africa, Nigeria, and Uganda. Absent generally accepted criteria that determine what a climate change case is, we focus on the three cases included in the authoritative Sabin Center for Climate Change Law database and that have been recognized in the literature as climate change cases. (19) This includes two cases already decided: in South Africa, Earthlife Africa Johannesburg v. Minister of Environmental Affairs (hereinafter Thabametsi); (20) and in Nigeria, Gbemre v. Shell Petroleum Development Co. Nigeria Ltd. (hereinafter Gbemre). (21) In Uganda, the case of Mbabazi v. The Attorney General & National Environmental Management Authority (hereinafter Mbabazi) (22) is still in its preparatory phase, and the decision remains pending at the time of writing. This case, more than its South African and Nigerian counterparts, could resemble a form of climate trust litigation emerging elsewhere in the world. (23) We agree with Setzer and Vanhala that "the pre-litigation stage of mobilizing the law can be enormously impactful, and has the power to shape policy... in ways that until now have remained invisible to scholars." (24) Therefore, despite it not having been heard yet, we provide brief thoughts on Mbabazi based on available pre-trial materials since we believe it could offer useful insights into the potential of climate trust litigation in Africa.

   Mindful of the risk of over-generalizing, and if these are evident, Part V concludes the discussion by employing a comparison by highlighting emerging climate change litigation trends in African courts, while also comparing them to the more generic trends emerging worldwide that were identified in Part II. In the final instance, the discussion critically reflects on the state of and prospects for climate change litigation on the continent.

2. LITIGATING CLIMATE CHANGE: A SYNOPSIS

   The legal dimensions of climate change took shape in the 1990s with the worldwide, if not universal, adoption of the United Nations Framework Convention on Climate Change in 1992 (UNFCCC), (25) and in 1997, the Kyoto Protocol. (26) The adoption of the Paris Climate Agreement (27) in 2015 further solidified the central role of law in global climate mitigation, adaptation, and resilience governance. In that same year, climate change emerged as one of seventeen key development concerns of states through its explicit incorporation in the Sustainable Development Goals (SDGs) as SDG 13 and the targets set for SDGs 1 and 11. (28) In tandem with, and often spurred on by, these developments on the international plane, some geographically clustered states have, over the years, developed regional climate change laws and policies specifically suited for their needs and circumstances. These range from highly developed normative frameworks, such...