The utility of environmental rights to sustainable development in Zimbabwe: A contribution to the constitutional reform debate

Tumai Murombo

Senior Lecturer, School of Law, University of the Witwatersrand, South Africa

SUMMARY

The current economic situation in Zimbabwe was caused by a number of factors, including legitimate attempts to redress historical imbalances in the ownership of land. Land is part of the natural resources of a country and without sustainable management and use of natural resources, a country may not be able to promote and fulfil other human rights. By now, Zimbabwe could have been almost out of its economic whirlpool if only it was able to sustainably manage its natural resources, in spirit of the state's trusteeship over natural resources. The constitutional reform process in Zimbabwe presents a timely opportunity to lobby for the inclusion of environmental rights in the new Constitution. It is crucial to understand why such rights should be included and what benefit they may bring to the people of Zimbabwe. Environmental rights are crucial to sustainable development and the fulfilment of other human rights, especially socioeconomic rights, that depend on the availability of resources. All human rights are therefore interdependent and complementary. Nevertheless, environmental rights will only thrive in an environment where the rule of law and good governance are respected. By incorporating environmental rights in the new Constitution, Zimbabwe will be following not only developments in South Africa, but also trends in international environmental law and the regional protection of human rights, especially in Africa.

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* LLB (Hons) (Zimbabwe), LLM (Cape Town), LLM (Pace NY); Tumai.Murombo@wits. ac.za. An earlier draft of this paper was presented at the 7th Annual Colloquium of the IUCN Academy on Environmental Law, 1-5 November 2009, held in Wuhan, China. Comments and feedback from conference participants are gratefully acknowledged.
1 An environmental right is a working term which has been devised for the purposes of this research. It does not reflect on the nature of the right advocated for, that is, it does not reflect on whether the right argued for should be a right to the environment or a duty to protect the environment imposed on human beings.
2 Director: Mineral Development, Gauteng Region & Sasol Mining (Pty) Ltd v Save the Vaal Environment 1999 2 SA 709 (SCA) para 20; Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Dept of Agriculture, Conservation and Environment, Mpumalanga Province 2007 6 SA 4 (CC) para 57.
³ These include the Stockholm Declaration of 1972; the World Conservation Strategy (WCS) prepared by the International Union for the Conservation of Nature (IUCN) in 1980; the Brundtland Report 1987; the Rio Declaration and Agenda 21 produced by the Rio Summit in 1992. See P Sands Principles of international environmental law (2003) generally; and J Glazewski Environmental law in South Africa (2005) 29.
4 And enjoyment of other human rights: D Shelton 'Human rights and the environment: Substantive rights' in M Fitzmaurice et al (eds) Research handbook on international environmental law (2010) 265.
5 By this it is meant that the 1979 Lancaster House Constitution was a document produced out of negotiations to end the liberation war, hence it contains many unfortunate compromises as Britain gave its former colonies constitutions which had little by way of human rights protection. The Zimbabwean Constitution has a Declaration of Rights which was effectively used by the Supreme Court in the late 1980s and early 1990s to advance human rights generally. See eg its application in Catholic Commission for justice and Peace v Attorney- General & Others 1993 1 ZLR 242 (SC); In re Munhumeso & Others 1994 1 ZLR 49 (S); 1995 1 SA 551 (ZS); 1995 2 BCLR 125 (ZS); Commissioner of Police v CFU 2000 1 ZLR 503 (H); 2000 9 BCLR 956 (ZH); Nyambirai v NSSA 1995 2 ZLR 1 (S); 1996 1 SA 636 (ZS); 1995 9 BCLR 1221 (ZS), to name but a few. It does not have any provisions expressly guaranteeing the right to a decent environment.
6 First, the hypothesis is limited to developing countries because this article focuses on Southern Africa. Note, however, the still unsettled definitions of the notion of 'developed' and 'developing'. Secondly, it has been argued that most developed countries have established traditions of environmental management and may not need constitutionally-guaranteed environmental rights. This applies to countries like the United Kingdom and the United States of America. Note, however, that even in those countries there has been agitation for constitutional protection of environmental rights; see C Juma 'Private property, environment and constitutional change' in C Juma & JB Ojwang (eds,) In land we trust (1996) 369.
7 A Sachs Protecting human rights in a new South Africa (1991) 141, where he correctly writes that '[h]uman rights in the broadest sense are indivisible. When we breathe the air of freedom, we do not want to choke on fumes.' See also Government of the Republic of South Africa & Others v Grootboom & Others 2000 11 BCLR 1169 (CC) 1184; HJ Steiner & P Alston International human rights in context: Law, politics and morals. Text and materials (2000) 247.
8 Sachs (n 7 above).
⁹ See S Attapatu 'The right to a healthy life or the right to die polluted? The emergence of a human right to a healthy environment under international law' (2002) 16 Tulane Environmental Law Journal 65 113 (arguments against environmental rights); see also MR Anderson 'Human rights approaches to environmental protection: An overview' in AE Boyle & MR Anderson (eds) Human rights approaches to environmental protection (1996) 14; see also W Ncube et al 'Towards the constitutional protection of environmental rights in Zimbabwe' 1996 (13) Zimbabwe Law Review 97 101-102.
10 A Boyle 'The role of international human rights law in the protection of the environment' in Boyle & Anderson (n 9 above) 46.
11 On the jusiticiability of socio-economic rights, see UN Committee on Economic, Social and Cultural Rights General Comment 9 (1998) UN Doc E/1999/22, Annex IV in Steiner & Alston (n 7 above) 276-277; see also Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa 1996 4 SA 744; 1996 10 BCLR 1253 (CC) para 78; and the Grootboom case (n 7 above). It is submitted that the ratio of these cases applies with equal force to the jusiticiability of environmental rights.
12 JG Merrills 'Environmental protection and human rights: Conceptual aspects' in Boyle & Anderson (n 9 above) 31-33.
13 Most of these arguments have been debunked and the focus is now on how to implement and enforce socio-economic and environmental rights.
¹⁴ Indian courts are well known for their activism in this regard: See the case of Indian Council for Enviro-Legal Action v Union of India 3 SC C 212 (1996) and many others. In Southern Africa, the Tanzanian High Court used the right to life to protect people from pollution arising from a dump site in the case of Joseph D Kessy v Dar es Salaam City Council Civil Case 29 of 1988. For a detailed analysis of these and other cases, see 'Constitutional environmental law: Giving force to fundamental principles in Africa' Environmental Law Institute (ELI) Research Report May 2000 16-17, especially 29 http://www.elistore.org/reports_detail.asp?ID=527 (accessed 31 March 2011). See also MR Anderson 'Individual rights to environmental protection in India' in Boyle & Anderson (n 9 above) 214-216; Shelton (n 4 above) 267.
¹⁵ Sec 24 of the South African Constitution, 1996.
¹⁶ Attapatu (n 9 above) who breaks environmental rights into 'substantive' and procedural environmental rights. Similarly, J Razzaque 'Human rights to a clean environment: Procedural rights' in Fitzmaurice (n 4 above) 284 discusses the right to participation, the right to formation and the right of access to justice as procedural environmental rights, when arguably these are established civil and political rights. This may be unhelpful and I argue that the better view is to look at the so-called procedural environmental rights as merely instances where existing civil and political rights can be used to advance, defend or vindicate substantive environmental rights.
¹⁷ Sec 24 of the South African Constitution Act. It, eg, grants the right to every person; however, it also places a duty on every person to protect the environment, that is, the right has horizontal application as between ordinary citizens or legal persons. Art 39 of the Constitution of the Republic of Madagascar provides that everyone has a duty to respect the environment. Can another person or an environmental NGO enforce this right to respect on behalf of the environment? Art 72 of the Mozambican Constitution of 1992 provides that all citizens have a duty to defend a balanced environment. The Mozambican provision, art 72, could arguably be an exception in this respect.
18 Juma (n 6 above) 366-367.
19 Ncube (n 9 above) 102; see also Fuel Retailers case (n 2 above) para 59.
20 On the indivisibility of rights, see art I(5) of the Vienna Declaration and Programme of Action, UN Conference on Human Rights, 14-25 July 1993 http://www.unhchr. ch/html/menu5/wchr.htm (accessed 15 August 2010); see to the contrary F du Bois 'Social justice and the judicial enforcement of environmental rights and duties' in Boyle & Anderson (n 9 above) 152 157, who argues that whatever their formulation, the implementation of environmental rights is fraught with conceptual difficulties.
21 JG Merrils 'Environmental rights' in D Bodansky et al (eds) The Oxford handbook of international environmental law (2007) 664 675: 'Nevertheless, the tendency for rights to be discussed, as it were, in separate compartments, which is encouraged by the practice already noted of formulating certain rights in rather vague terms, is to be deplored.'
²² Attapatu (n 9 above) 109.
23 The Vaal is a South African wetland subject matter of litigation in The Director: Mineral Development, Gauteng Region & Another v Save the Vaal Environment & Others 1999 2 SA 709 (SCA).
24 Anderson (n 9 above) 8-9.
25 Eg, a number of cases have been brought before the European Court of Human Rights claiming a violation of the right to privacy and home life (art 8 European Convention on Human Rights) to achieve environmental objectives. See Lopez-Ostra v Spain (1994) EHRR 20, 227; Guerra & 39 Others v Italy (1998) EHRR 26, 357; and Powell & Raynor v United Kingdom (1990), EHRR 12, 335.
26 Attapatu (n 9 above) 103.
²⁷ See PE Taylor 'From environmental to ecological human rights: A new dynamic in international law?' (1998) 10 Georgetown International Environmental Law Review 309.
²⁸ See sec 39 of the South African Constitution; see also T Murombo 'Strengthening locus standi in public interest environmental litigation: Has leadership moved from the United States to South Africa?' (2010) 6 Law, Environment and Development journal 165; T Humby 'Reflections on the Biowatch dispute: Reviewing the fundamental rules of costs in the light of the needs of constitutional and/or public interest litigation' (2009) 12 Potchefstroom Electronic Law journal 95 166.
²⁹ In this context, to effectively combat global warming and climate change, concerted and harmonised regional approaches are more effective than sporadic national initiatives. See W Scholtz 'The promotion of regional environmental security and Africa's common position on climate change' (2010) 10 African Human Rights Law Journal 1.
30 Human Rights Watch Diamonds in the rough: Human rights abuses in the Marange diamond fields of Zimbabwe (2009) 28.
31 D Hunter et al International environmental law and policy (2002) 1284-1285. See also D Takacs 'The public trust doctrine, environmental human rights, and the future of private property' (2008) 16 New York University Environmental Law Journal 711 733, arguing that '[e]nvironmental human rights create more duties of each individual and the sovereigns who serve them not only not to usurp resources that are the object of these rights, but to affirmatively protect the natural objects and processes that form the basis of the rights'.
³² See generally Glazewski (n 3 above) 71.
33 Art 24. The revised African Convention on the Conservation of Nature and Natural Resources was adopted the 11 July 2003 at the Assembly of the African Union; see also Draft Declaration on Human Rights and the Environment produced by the United Nations Human Rights Commission in 1994 http://fletcher.tufts.edu/multi/www/1994-decl.html (accessed 31 March 2011); and the Ksentini Report Review of further developments in fields with which the sub-commission has been concerned human rights and the environment E/CN 4/Sub 2/1994/9 http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/eeab2b6937bccaa18025675c005779c3?Opendocument (accessed 28 March 2011).
34 Scholtz (n 29 above).
35 My emphasis. This right was, among other rights, at issue in the communication of Social and Economic Rights Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001), where the African Commission ruled that the activities of the Nigerian government were violating, among other rights, the environmental and developmental rights of the people of Ogoniland.
36 Art 3(j) African Union Constitutive Act http://www.africa-union.org/root/au/aboutau/constitutive_act_en.htm (accessed 28 March 2011).
37 DB Magraw & LD Hawke 'Sustainable development' in Bodansky et al (n 21 above) 624: 'Sustainable development is "soft law" - that is, a normative statement supported by a political or other commitment and, thus, something more than policy even though it is not legally binding (though it may become binding in the future).' V Lowe 'Sustainable development and unsustainable arguments' in A Boyle & D Freestone (eds) International law and sustainable development: Past achievements and future challenges (1999) 19 31: 'Sustainable development is a "metaprinciple, acting upon other legal rules and principles".'
38 K Bosselman 'Losing the forest for the trees: Environmental reductionism in the law' (2010) 2 Sustainability 2424 2438: 'Soft law represents a consensus of the international community of states that is considered legally relevant, although not binding' http://www.mdpi.com/2071-1050/2/8/2424/pdf (accessed 31 March 2011).
39 D Bodansky The art and craft of international environmental law (2010) 14: 'The very term soft law betrays some confusion about the definition of law ... Difficulty of law from politics particularly acute in international environmental law, which often addresses issues in a pragmatic, non-legalistic way.'
40 Magraw & Hawke (n 37 above) 624; Lowe (n 37 above).
⁴¹ I Brownlie Principles of public international law (2008) 278; PW Bernie & AE Boyle International law and the environment (2002) 47 also doubt the legal status of the concept. Contrast Sands (n 3 above) 208, who suggests that the concept is now recognised at international law and notes that the principle of 'sustainability' can be said to have featured in international relations as far back as 1893, 199.
42 Most post-Stockholm international environmental declarations and conventions in one way or another refer to sustainable management or utilisation of resources; see the 1992 Convention of Biological Diversity which talks of 'sustainable use'; art XIV of the African Convention on the Conservation of Nature and Natural resources deals with sustainable development and natural resources; see Weeramantry J in the Case Concerning the Construction of the Gabcikovo-Nagymaros Project (Hungary v Slovakia) (1998) 37 International Legal Materials 162 204 ; South Africa's NEMA and Zimbabwe's Environmental Management Act (ch 20:27) all treat sustainable development as a fundamental principle of environmental management.
43 The internationally-accepted definition is 'development that meets the needs of present without compromising the ability of future generations to meet their own needs', coined by the World Commission of Environment and Development (WCED)'s report Our common future (1989); see also D French 'Sustainable development' in Fitzmaurice et al (n 4 above) 55: 'Similar uncertainties arise if one suggests sustainable development is a putative rule of customary international law. There is not only the factual question whether sustainable development has, as yet, become such a rule, but more fundamentally, the legal question, whether it is possible for sustainable development to develop into such a rule.' Magraw & Hawke (n 37 above) 613; see also Glazewski (n 3 above) 13; R Callway 'Introduction: Setting the scene' in G Ayre & R Callway Governance for sustainable development: A foundation for the future (2005) 13: 'Sustainable development continues to be thought of as 'an issue' - a passing catchphrase something that one addresses among a whole plethora of other global concerns and priorities. This totally misses the point. It is sustainable development that defines how we do good governance' (emphasis in original).
⁴⁴ Sands (n 3 above) 252.
45 E Brown Weiss 'Implementing intergenerational equity' in Fitzmaurice et al (n 4 above) 102.
⁴⁶ Illinois Central Railroad v Illinois 146 US 387 (1892); JL Sax 'Liberating the public trust doctrine from its historical shackles' (1980) 14 UC Davis Law Review 185 189.
⁴⁷ P Kameri-Mbote 'The use of the public trust doctrine in environmental law' (2007) 3 Law, Environment and Development Journal (2007) 195 197 http://www.lead-journal.org/content/07195.pdf (accessed 28 March 2011).
48 While initially limited to public resources such as water and the air, the public trust doctrine has since been expanded to include other natural resources such as minerals and biological resources. See eg the South African National Environmental Management: Biodiversity Act 10 of 2004 (sec 3 headed 'State's trusteeship of biological diversity'); the Minerals and Petroleum Resources Development Act 28 of 2002 (sec 3 headed 'Custodianship of nation's mineral and petroleum resources'); the National Water Act 1998 (sec 3 provides, among other things, that '[a]s the public trustee of the nation's water resources the national government, acting through the Minister, must ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its constitutional mandate').
⁴⁹ Brown Weiss (n 45 above) 102. In some jurisdictions, this principle has been applied in practical cases to defend the rights of future generations; see Juan Oposal & Others v the Honourable Fulgencio Factoran Jr, Secretary of the Department of the Environment and Natural Resources & Others (Oposa v Factoran) (1993) Supreme Court of the Philippines, SCRA 224, 1792; ILM 33 173.
50 French (n 43 above) 60, arguing that working towards intra-generational equity (between the north and the south) is pivotal for sustainable development. This argument can very well be applied to the need to promote equity between rich and poor within states. French argues elsewhere that intra-generational equity concerns itself with the need for fairness in international law both in terms of social and environmental justice; D French 'International environmental law and the achievement of intra-generational equity' Environmental Law Reporter 10469-10485.
51 C Rechtschaffen et al Environmental justice: Law, policy and regulation (2009) 3-21.
52 Magraw & Hawke (n 37 above) 627.
53 Sec 2 of the National Environmental Management Act 108 of 1998; sec 24 of the Constitution of South Africa is predicated on the concept of sustainable development.
54 Sec 2(4) NEMA.
55 Glazewski (n 3 above) 9-10; similarly, international environmental law is built upon international conventions and custom, which are now either substantively informed or related to sustainable development or the use of natural resources and the control of environmental problems. See also BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation and Environment and Land Affairs 2004 5 SA 124 (W) 144B-C; Fuel Retailers case (n 2 above) paras 45 & 57.
56 Secs 4(a), (c), & (o) NEMA.
57 Kameri-Mbote (n 47 above) 199 (explaining the nature of the obligations of the state as trustee over natural resources). These concepts can be used to control access to and sustainable use of diamonds in Chiadzwa, public land resources, and other natural resources in partnership with local communities, the government merely being a trustee for present and future generations.
58 Takacs (n 31 above) 733.
59 The Preamble to NEMA, eg, correctly links environmental injustice to the violation of environmental rights. It provides that 'inequality in the distribution of wealth and resources, and the resultant poverty, are among the important causes as well as the results of environmentally harmful practices' (my emphasis).
⁶⁰ Fully elaborated on by Brown Weiss (n 45 above) 100 102-104.
61 Shelton (n 4 above) 265 279 ('Human rights cannot be enjoyed in a degraded environment'). The rights to life, health, food, water, even privacy are all compromised by the absence of environmental protection.
62 See L Stewart & D Horsten 'The role of sustainability in the adjudication of the right of access to adeq uate water' (2009) 24 SA Public Law 486; Mazibuko & Others v City of Johannesburg & Others 2010 3 BCLR 239 (CC); 2010 4 SA 1 (CC) (at the core this case was about how South Africa can manage its water resources to promote the right of access to sufficient water provided for in the Constitution).
63 See eg secs 24, 26, 27 and 28 of the South African Constitution and United Nations Economic and Social Council, General Comment 12 'The right to adequate food' (art 11) 1999/05/12. E/C.12/1999/5.
64 Hunter et al (n 31 above) 1281.
65 As above (my emphasis).
66 Chaotic land invasions left productive land barren and fallow while national park fences were torn down in a wave of uncontrolled settlements, while even before 1998 illegal mining had become a common sight, the recent being the diamond saga in Chiadzwa.
67 See generally Ministry of Lands, Agriculture, and Rural Resettlement 'Land Reform and Resettlement Programme: Revised Phase II' (Harare: Government of Zimbabwe, April 2001).
68 K Bosselmann et al 'Governance for sustainability issues, challenges, successes' IUCN Environmental Policy and Law Paper 70 (2008) 7. See generally the UNDP Human Development Report 'Beyond scarcity: Power, poverty and the global water crisis' 2006 http://hdr.undp.org/en/reports/global/hdr2006 (accessed 16 August 2010).
69 Fuel Retailers (n 2 above) para 44. The court continues to state in para 45 that '[t] he Constitution recognises the interrelationship between the environment and development; indeed it recognises the need for the protection of the environment while at the same time it recognises the need for social and economic development. It contemplates the integration of environmental protection and socio-economic development.' See further T Murombo 'From crude environmentalism to sustainable development: Fuel Retailers' (2008) 3 South African Law Journal 488.
70 A good example is how affirmative action programmes, such as the indigenisation policy in Zimbabwe or the BEE policy in South Africa, eventually enrich a few of the elite while the greater majority of people languish in abject poverty.
⁷¹ See B Cousins 'Time to ditch the "disaster" scenarios' Mail & Guardian 21 May 2010 http://www.mg.co.za/article/2010-05-20-time-to-ditch-the-disaster-scenarios (accessed 15 August 2010), arguing that the land reform did benefit quite a number of people in Zimbabwe despite the flagrant poor implementation of the programme. 'Clearly, agriculture in Zimbabwe has indeed experienced significant problems in the years following radical land reform, but the notion of "total failure" is inaccurate. A new agrarian structure has come into being, with a much wider range of farm sizes and farming systems than in the past, replacing a highly unequal and dualistic structure.'
72 LA Feris 'The role of good environmental governance in the sustainable development of South Africa' (2010) 13 Potchefstroom Electronic Law Journal 73; M Sachiko & D Zaelke 'Rule of law, good governance, and sustainable development' http://www. inece.org/conference/7/vol1/05_ Sachiko_Zaelke.pdf (accessed 16 August 2010).
73 Attapatu (n 9 above) 126.
⁷⁴ Shelton (n 4 above) 279; defined by the United Nations Development Programmes (UNDP) as 'the exercise of economic, political and administrative authority to manage a country's affairs at all levels. It comprises the mechanisms, processes and institutions, through which citizens and groups articulate their interests, exercise their legal rights, meet their obligations and mediate their differences.' The UNDP elaborates the concept further, adding that '[g]ood governance is, among other things, participatory, transparent and accountable. It is also effective and equitable. And it promotes the rule of law. Good governance ensures that political, social and economic priorities are based on broad consensus in society and that the voices of the poorest and the most vulnerable are heard in decision making over the allocation of development resources' (my emphasis) http://mirror.undp.org/magnet/policy/chapter1.htm (accessed 28 March 2011).
75 M Sachiko & Z Durwood 'Rule of law, good governance and sustainable development' 7th International Conference on Environmental Compliance and Enforcement http://www.inece.org/conference/7/vol1/05_Sachiko_Zaelke.pdf (accessed 28 March 2011).
76 KR Hope 'Toward good governance and sustainable development: The African Peer Review Mechanism' (2005) 18 Governance 283 285 (my emphasis).
77 This is a contentious issue with some viewing the current judiciary as simply pan-African as opposed to the largely white bench of the 1980s and 1990s whose allegiances were put into doubt with their avid protection of white commercial farmers on land
78 See J Dugard 'The role of human rights treaty standards in domestic law: The Southern African experience' in P Alston & J Crawford (eds) The future of UN human rights treaty monitoring (2000) 269.
79 This was so with the predominantly white Supreme Court bench. Perceptions of that Court being packed started soon after land invasions and war veterans, acting in cohorts with the Justice Ministry, openly invited most of the white judges to resign as they were perceived to be serving the interests of white commercial farmers and presented obstacles in the land reform programme.
80 I do not intend to make any detailed analysis of Indian jurisprudence here, just a comparative reference; for a detailed analysis, see J Razzaque Public interest environmental litigation in India, Pakistan and Bangladesh (2008); MC Mehta v Kamal Nath 1997 1 SCC 388; and MC Mehta & Others v Shriram Food and Fertilizer Industries and Union of India (Oleum Gas Leak case - III) AIR 1987 SC 1026.
81 See eg the Land Husbandry Act (Chapter); Natural Resources Act (ch 20:13) recently repealed by EMA, and the old Water Act (ch 20:22). A common feature of these environmental statutes is that they regulated the exploitation of natural resources and were not about conservation or sustainable utilisation. See J Murombedzi 'The evolving context of community-based natural resource management in sub-Saharan Africa in historical perspective' 2-4, Plenary Presentation, International CBNRM Workshop, Washington DC, USA, 10-14 May 1998 http://www.cbnrm.net/pdf/murombedzi_001.pdf (accessed 16 August 2010).
82 W Chinamhora 'Towards environmental impact assessment in Zimbabwe: Making developers and project proponents ecologically conscious' (1995) 7 Legal Forum 41; W Chinamhora 'Zimbabwe's Environmental Impact Assessment Policy of 1994: Can it achieve sound environmental management' (1995) 7 Legal Forum 37; W Ncube 'Land tenure systems, natural resources and environmental protection in Zimbabwe: The legal regulatory framework' 1996 (8) Legal Forum 26; W Chinamhora & D Ruhukwa 'Towards an Environmental Management Act: Review and revision of Zimbabwe's environmental legislation' Report for the Ministry of Environment and Tourism, 1995.
83 Act 13 of 2002 or ch 20:27.
⁸⁴ Sec 143 repeals the Natural Resources Act (ch 20:13), but preserves regulations and by-laws made under that Act. Sec 144 repeals the Atmospheric Pollution Prevention Act (ch 20:03), the Hazardous Substances and Articles Act (ch 15:05) and the Noxious Weeds Act (ch 19:07).
85 Part II, especially secs 4 & 5.
⁸⁶ Sec 4(2)(a).
87 Sec 4(2)(f).
^{88 Sec4(2)(g).}
89 Sec 4(2)(e).
⁹⁰ Sec 4(3).
91 This is in clear contrast to the approach taken in the Constitution of the Republic of South Africa, 1996 and subsequent decisions by South African courts that have largely upheld the right to an environment not harmful to health or wellbeing. See BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs 2004 5 SA 124 (W).
⁹² Before the inclusive government, no one could account for the revenue from diamond mining then taking place under a free-for-all situation. The inclusive government brought some order in the area, reducing the chaos there, and involving the Kimberly Process, even though the situation is far from ideal.
93 Human Rights Watch (n 30 above), in general.
94 As discussed above.
95 'Agreement between the Zimbabwe African National Union-Patriotic Front (ZANU-PF) and the two Movement for Democratic Change (MDC) formations, on resolving the challenges facing Zimbabwe' http://www.copac.org.zw/downloads/category/7-government-of-national-unity.html# (accessed 28 March 2011).
96 Art VI (6.1 of the Agreement) - The constitutional reform process was supposed to be completed within 18 months of the formation of the inclusive unity government. These timeframes have since been abandoned given hitches in funding and political obstacles put in the way of COPAC.
97 COPAC http://www.copac.org.zw/home/copac-organisation-profile.html (accessed 28 March 2011)
98 S Mtisi 'Environment cluster CSOs engage Zimbabwean constitutional reform body' 29 April 2010 http://www.accessinitiative.org/blog/2010/04/environment-clustercsos-engage-zimbabwean-constitutional-reform-body (accessed 27 March 2011); S Mtisi 'Constitutional talking points revised: Includes environment and natural resources' http://www.accessinitiative.org/blog/2010/06/constitutional-talkingpoints-revised-includes-environment-and-natural-resources-questi 3 June 2010
(accessed 27 March 2011).
99 Zimbabwe Environmental Law Association (ZELA) 'Constitutional rights card: Environment, natural resources and land' http://www.zela.org/news/Press%20Statements/Constitutional%20Campaign%20Card%20on%20Environment.pdf (accessed 27 March 2011).
100 Very recently the government department responsible for mineral resources had to stop an unauthorised auctioning of 600 000 carats of diamonds by the private companies that are currently mining diamonds in Chiadzwa. See 'Zim stops diamond auction' Southern Times 12 October 2009; 'Government of Zimbabwe stops auction of 300 000 carats of rough diamonds' Diamond World News Service 11 January 2010 http://www.diamondworld.net/contentview.aspx?item=4537 (accessed 15 August 2010); and 'Ministers fight over diamonds' Zimbabwe Independent 10 June 2010 http://www.theindependent.co.zw/local/26877-ministers-fight-over-diamonds.html (accessed 15 August 2010).
101 Human Rights Watch (n 30 above).
102 Razzaque (n 16 above) 285.
103 Gold and diamond artisanal mining has caused extensive environmental damage all over the country.
¹⁰⁴ See Glazewski (n 3 above); Boyle & Anderson (n 9 above) 182 195.
105 W du Plessis 'Access to information' in A Paterson & LJ Kotzé (eds) Environmental compliance and enforcement in South Africa: Legal perspectives (2009) 199; sec 32 South African Constitution.
106 A detailed comparative survey is beyond the scope of this paper. However, throughout the paper I have made reference to relevant South African jurisprudence as South Africa is at the forefront of advancing sustainable development through the constitutional right to an environment not harmful to health and wellbeing. See generally authorities in nn 2 & 3 above.
¹⁰⁷ Sec 33 South African Constitution.
¹⁰⁸ Sec 34 South African Constitution.
¹⁰⁹ See Trustees, Biowatch Trust v Registrar: Genetic Resources & Others 2005 4 SA 111 (T) for the importance of access to information and administrative justice to environmental rights generally.
110 M Faure et al 'Bucking the Kuznets Curve: Designing effective environmental regulation in developing countries' (2010) 51 Virginia Journal of International Law 95 134-135 147.
111 As above.
112 The existing Class Actions Act (ch 8:17) is not useful in this regard.