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At this workshop a number of papers were presented by leading Environmental Justice experts.  Please click the link for the paper you are interested in:

What is Environmental Justice
Legal and Institutional Arrangements for Public Participation and Environmental Justice
Principles of Environmental Justice
Environmental Justice, Human Rights and the Environment: A dicussion note with Scattered examples from Tanzania
 

What is Environmental Justice? 
Yonge Nawe is supporting affected communities and other target groups by developing and conducting campaigns that are aimed at reducing key problems that confront them (communities). The main objective of the campaigns is to equip affected communities with knowledge and skills to challenge perpetrators of environmental and social injustices and achieve an equitable standard of living devoid of development related environmental hazards. The Maloma Coillery and ferrovanadium plant in Maloma have been identified as part of Yonge Nawe’s Environmental Justice Campaign programme. 

Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. 

Fair treatment means that no group of people, including a racial, ethnic, or a socioeconomic group, should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies. 

Meaningful involvement means that: (1) potentially affected community residents have an appropriate opportunity to participate in decisions about a proposed activity that will affect their environment and/or health; (2) the public's contribution can influence the regulatory agency's decision; (3) the concerns of all participants involved will be considered in the decision making process; and (4) the decision makers seek out and facilitate the involvement of those potentially affected. 

In sum, environmental justice is the goal to be achieved for all communities and persons across this Nation. Environmental justice is achieved when everyone, regardless of race, culture, or income, enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work. 

Legal and Institutional Arrangements for Public Participation and Environmental Justice
Presented by LKM Attorneys & Legal Consultants

I.   Introduction 

1.1.  The issue of Environmental Justice in Swaziland is one of public moment.  The country currently finds itself in a Constitutional and Judicial crisis that mitigates against the access of the public to justice through our judicial system.  All stakeholders in the judicial system are working around the clock to apply pressure on the Executive to put the crisis to an end, and allow due process of the law in line with the dictates of the Rule of Law to be restored.

1.2.  Likewise, there has been a growing jurisprudence within Government structures, the world over, of developing Public-Private Partnerships.  This is predicated on the realisation of the need for both Government and the Public to find synergies and develop a symbiotic relationship to best achieve the aspirations of the country as determined by its Constitution.

1.3.  This workshop, organised and hosted by Yonge Nawe is therefore very timely. Amongst all other aspects of environmental justice that the present participants would like to explore, the place of the rule of law, and independent judiciary, a competent body of legal practitioners, and a vibrant and alert civil society must be central to the discussions.

1.4  At the same time, of equal importance, will be for the participants to engage in thought provoking exercises to see how best civil society can engage and participate in environmental initiatives within the framework of environmental law and policy.

2.   Approach & Output

2.1.  In treating the subject of Public Participation and Environmental Justice, it will be important to address the following areas:

• The Constitution and its role with regard to Public Participation and Environmental Justice.
• The Legal and Policy Frameworks that exist, and their bearing on Public Participation and Environmental Justice.
•  The Institutional Arrangements that exist in the area of the Environment.
• Opportunities & Strategies for Public Participation in Environmental Justice .

• Create a basic understanding of the Constitutional, Legal, Policy  and Institutional Framework of Swaziland with regard to environment.
• Provide a basic outline of the salient provisions of the Environmental Management Act 2002 and how they measure to the principles of Governance, Public Participation and Environmental Justice.
• Present a few thoughts on entry points for Public Participation in Environmental Justice.

3.1  Upon attaining independence in 1968, Swaziland inherited a Constitution fashioned in line with the British Westminster model. It  incorporated an entrenched Bill of Rights.  The Bill of Rights did not refer specifically to environmental rights, presumably because human rights jurisprudence had not yet been developed to the level where the right to a clean environment was accepted as a basic human right worth protecting in its own right.

3.2.   Notwithstanding this, the Bill of Rights did protect human rights generally.  It is argued that even if only broadly and generally stated, such a Constitution would have been able to protect environmental rights as we now know them. 

3.3.  This Constitution lasted no longer than four years.  In 1973, by a King’s Proclamation to the Nation His Majesty King Sobhuza II repealed certain portions of the Constitution which included the Bill of Rights.  The infamous1973 Decree substituted the Bill of Rights with an indigenous, "home grown" constitutional framework that saw all Legislative, Judicial and Executive power vested in the King.

3.4.  Although it is often said that Swaziland does not have a Constitution, it is argued that the current constitution of Swaziland consists of the saved provisions of the 1968 Constitution read together with the 1973 Decree and others that followed.

3.5.  The importance of this constitutional history is in the fact that there will always be a potential frustration of attainment of rights and justice if the Constitution of the country is not amenable to the pursuit of rights as internationally accepted.

3.6.  There is however, a new National Constitution that has been drafted.  It is anticipated that, following presentations that were made to the Constitutional Drafting Committee by various environmental stakeholders regarding inclusion of a clause protecting environmental rights, that this will be the case.

4.  Policy Framework

4.1.  With regard the Environmental Policy framework of Swaziland, there appears to be the political commitment on the part of government to further the interests of the environment:

• National Development Strategy :  identifies environmental protection as a cornerstone for sustainable development.
• Economic and Social Agenda I and II : states that as a short-term objective land resources are to be protected and water resource management improved.
• Draft National Environmental Policy: commits itself to putting into place legislation that complies with internationally accepted environmental principles.
• Swaziland Environmental Action Plan: proposes environmental action plans to consistently apply to land environmental management policies.

5.1.  Prior to 1992, legislation that pertained to the environment was fragmented in terms of environmental sectors, a purely command and control regulatory framework.

5.2.  In 1992, the Swaziland Environmental Authority Act created the Swaziland Environmental Authority and made the first attempt at creating some centralised control and semi-participatory regulatory framework for managing the environment.

5.3.  In 2002, the Environmental Management Act was enacted.  It created extensive co-operation amongst government agencies having a mandate for the environment, strengthened the structures, management and independence of the SEA, introduced an increased degree of avenue for public participation and environmental justice.

6.  Audit of the Environmental Management Act

6.1.  In determining the adequacy of the Environmental Management Act, an audit was conducted of the Act. 

6.2.  The general results of the audit of the Act revealed that:

• The Act provides for and protects internationally accepted common law environmental principles and commits itself to striving to attain and maintain same.
• The Act provides institutional arrangements for the management, control, monitoring of various bodies created by the Act and having the mandate to archived the environmental objectives set out by the Act.
• It provides for environmental record and information keeping and archiving; and provides for the right of the public to access this information and data.
• The Act provides for the right of the public to be heard, to object, to participate in public hearings and to be entitled to reports of inquiries and public hearings.
• It provides for the right of the public to sue the SEA and environmental violation offenders both criminally and civilly through the court system.
• It provides for a variety of legal remedies available to the aggrieved person that seeks recourse through the SEA or through the Courts. e.g. restoration orders, interdicts, award of damages, costs
• It provides for sanctions, offences and penalties . e.g. imprisonment, punitive fines, daily fines for continuing offences etc.

7.1 Having audited the Act, it remains to test the salient provisions of the Act for their compliance with Principles of Good Governance, Public Participation and Access to Justice.

7.2.  It is concluded that the Act is to an adequate extent compliant with principles of Good Governance as it provides for:

• accountability;
• transparency of operations; 
• stakeholder representation;
• decentralisation of power and authority;
• financial control and management.

• the right of the public to be informed;
• to participate in all processes leading to a decision; 
• to access information.

• the right of an aggrieved person to sue through the court system;
• the right to raise objections;
• the right to seek review of proceedings;
• the right to appeal against decisions;
• legally guaranteed redress and remedies.

8.1.  In conclusion, this paper seeks to hazard various thoughts on how the Public may participate in environmental justice and further the interests of the environment. The following list is by no means exhaustive:

• Support for the Rule of Law :  first prize goes to public support for the Rule of Law campaign.  There can be no meaningful justice to be obtained by the public if the judiciary is not independent and is unable to dispense fairness and justice without fear or favour.
• Capacity Building of Legal Practitioners:  there can be no effective environmental litigation if the entire body of legal practitioners who will be instructed to handle environmental cases do not have adequate training or understanding of the environment.
• Capacity Building of Judicial Officers :  For the same reasons, it is important for Judicial Officers to be sensitised to environmental principles in order for them to preside effectively over environmental disputes.
• Environmental Litigation: There is need for a number of environmental cases to be brought before the Court.  This will improve awareness of environmental issues as well as assist to develop a body of environmental legal precedent, and to act as a deterrent to offenders.
• Drafting of Environmental Bills :  Civil Society, through its NGOs can expedite the process of drafting of environmental legislation through the Office of the Attorney General, by drafting the Bills and lobbying for their adoption.
• Sensitising & Lobbying Parliamentarians :  Parliamentarians being the voice of the public must be sensitised to environmental laws and concerns so that they are able to effectively apply pressure on the Minister concerned.
• Acting as Pressure Points for the speedy ratification of environmental international instruments: It has been recognised that the process of ratification of international instruments is extremely slow and ineffective.  Civil society needs to apply pressure on the role-players in the process to speed up the process.
• Attending Public Hearings :  The public can attend public hearings and make presentations. e.g. EIA and Scoping hearings.
• Convening fora for dialogue and debate:  Environmental issues to be debated and interrogated in for a such as workshops, debates and symposia to increase awareness of environmental issues.
•  Whistle Blowing :  Members of the public can help the cause by blowing a whistle on any environmental violations that they may be aware of in their communities.
• Naming and Shaming:  Environmental practitioners and NGOs can use their international networks to name and shame environmental offenders into compliance.
• Green Consumerism :  NGOs can, through engaging the Ministry of Enterprise monitor and sanction products that are environmentally unsafe.
• Green Media :  Media being an important tool for dissemination of information, effort needs to be put into hosting an environmental page, column or feature.
• Environmental Curriculum :  The school and University curriculum needs to be developed to integrate Environmental subjects in order to create a new generation of citizens that will be sensitive to the environment.

Alternative Dispute Resolution Mechanisms :  There appears a need for the development of structures for the Arbitration, Mediation and Conflict Resolution of environmental disputes as an alternative to the Court system.

• Environmental justice affirms the sacredness of Mother Earth, ecological unity and the interdependence of all species, and the right to be free from ecological destruction. 
• Environmental justice demands that public policy be based on mutual respect and justice for all peoples, free from any form of discrimination or bias. 
• Environmental justice mandates the right to ethical, balanced and responsible uses of land and renewable resources in the interest of a sustainable planet for humans and other living things. 
• Environmental justice calls for universal protection from nuclear testing, extraction, production and disposal of toxic/hazardous wastes and poisons and nuclear testing that threaten the fundamental right to clean air, land, water, and food. 
• Environmental justice affirms the fundamental right to political, economic, cultural and environmental self-determination of all peoples. 
• Environmental justice demands the cessation of the production of all toxins, hazardous wastes, and radioactive materials, and that all past and current producers be held strictly accountable to the people for detoxification and the containment at the point of production. 
• Environmental justice demands the right to participate as equal partners at every level of decision-making, including needs assessment, planning, implementation, enforcement and evaluation. 
• Environmental justice affirms the right of all workers to a safe and healthy work environment without being forced to choose between an unsafe livelihood and unemployment. It also affirms the right of those who work at home to be free from environmental hazards. 
• Environmental justice protects the right of victims of environmental injustice to receive full compensation and reparations for damages as well as quality health care. 
• Environmental justice considers governmental acts of environmental injustice a violation of international law, the Universal Declaration On Human Rights, and the United Nations Convention on Genocide. 
• Environmental justice must recognize a special legal and natural relationship of Native Peoples to the U.S. government through treaties, agreements, compacts, and covenants affirming sovereignty and self-determination. 
• Environmental justice affirms the need for urban and rural ecological policies to clean up and rebuild our cities and rural areas in balance with nature, honouring the cultural integrity of all our communities, and provided fair access for all to the full range of resources. 
• Environmental justice calls for the strict enforcement of principles of informed consent, and a halt to the testing of experimental reproductive and medical procedures and vaccinations on people of colour. 
• Environmental justice opposes the destructive operations of multi-national corporations. 
• Environmental justice opposes military occupation, repression and exploitation of lands, peoples and cultures, and other life forms. 
• Environmental justice calls for the education of present and future generations, which emphasizes social and environmental issues, based on our experience and an appreciation of our diverse cultural perspectives. 
• Environmental justice requires that we, as individuals, make personal and consumer choices to consume as little of Mother Earth's resources and to produce as little waste as possible; and make the conscious decision to challenge and reprioritise our lifestyles to insure the health of the natural world for present and future generations. 

I. Introduction 
My conceptualization of environmental justice is from a rights-based approach. I do consider environmental justice as emanating from environmental rights the latter being part and parcel of universal human rights. The conceptualization of environmental protection as a human rights issue, though a recent development in international law, is nothing new as a matter of common experience.  Recently, international environmental law has cemented the concept of environmental justice and has strived to define principles and structures that need to be in place for environmental justice to be realized. Human beings in every part of the world have always depended on the land, water, and air for their lives and livelihoods.  It is self-evident that damage to this environment is a major cause of the ongoing human crises.  In Africa, the great majority of the people directly rely on the land and its resources to support their day-to-day existence.  Today’s unsustainable development practices can and do put this existence at risk.  Water supplies are poisoned, populations are displaced to make room for resource extraction efforts, fishing stocks are overexploited; meanwhile, enforcement of some environmental laws also interferes with the traditional practices of indigenous communities.  For African peoples, then, the interrelationship between human rights and the environment is more than theoretical; it is a daily reality.

What is relatively new is that law is beginning to catch up with this reality.  In Africa and throughout the world, many international conventions and domestic constitutions now establish a human right to a healthy environment; meanwhile, jurisprudence and scholarship are beginning to recognize the ways in which other, well-established human rights may be implicated by environmental issues.  This emerging body of law can provide new tools for advocacy against environmental injustice.  Because of weaknesses in its substance and its enforcement, environmental regulation (both by domestic laws and international treaties) alone has failed in many ways to provide adequate protection to the human environment. Since this is not an academic paper, I will confine myself to broad concepts of environmental justice as embedded under international law and provide some examples of how environmental justice/rights have been vindicated or denied in Tanzania.

II. International Environmental Law 
In the field of environment, the corpus of international law is well developed and provides strong foundations for environmental justice as an important component of environmental management. The ‘environmental justice’ component is embedded in other broad concepts such as the right to participate in environmental decision making, the right of access to environmental information and access to environmental justice.   Environmental rights are of two kinds-substantive rights and procedural rights. While substantive environmental rights define the extent and content of particular rights to the environment, procedural rights do provide mechanisms for achieving the former. 

At a grassroots level, the linkages between environmental concerns and human welfare have long been clear, and local activists in many places in the world have tended to address the two in concert.   Nonetheless, the global environmentalist and human rights movements have traditionally not interacted very much, and in fact have often seemed at odds.   In part, this is because the mainstream environmental movement, especially in the West, has been (largely accurately) perceived as focused on issues such as conservation of endangered species that are removed from the everyday concerns of most people.  In recent years, that movement has been under pressure to address issues, such as urban pollution and waste disposal, which deal with the intersection between environmental harm and human health.  Moreover, the new and growing movement for "environmental justice" calls attention to the interconnections between environmental harm and other forms of oppression such as racism, and the ways in which environmental hazards disproportionately impact people of color and the poor.   Meanwhile, the mainstream environmental and human rights movements have begun to interact more with one another.  For example, a broad coalition of human rights and environmental NGOs worked together during the 1980s in opposition to the destruction of the Amazon rainforest, while in 1995, Amnesty International and the Sierra Club jointly issued a letter condemning environmental and human rights abuses in Nigeria. 

There are numerous international conventions that embody substantive environmental rights concepts. For example, since the Stockholm Declaration on Human Environment in 1972, the interconnection between environmental protection and human rights began to gain momentum. Principle 1 of the Declaration states:

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.  In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated. 

This principle, albeit  not directly linked with an  establishment of an individual right at international law, this statement of principle may be seen as a precursor of the modern conception, found in many constitutions, of a right to a clean environment.  An expanding range of international legal authorities has recognized the interdependence between a healthy environment and the exercise of human rights.  Rather than (or in addition to) recognizing a separate human right to a clean environment, many of these authorities have held that environmental harm violates other, well-established human rights.  These include the right to life, the right to a private life, and the right to property. 

For example,  in 1984, the Inter-American Commission on Human Rights held that the Brazilian government had violated the right to life of the Yamomani Indians when it constructed a highway through their territory.  The highway construction caused terrible environmental damage to the Yamomani’s land, and also brought the Indians into contact with a large number of outsiders who infected them with contagious diseases.  The Commission held that the failure to take actions to protect the Yamomani’s environment and cultural identity violated their rights to life, liberty, and personal security.  The U.N. Human Rights Committee has also suggested that environmental hazards might constitute a violation of the right to life.  A case was brought against Canada for failure to clean up radioactive waste in a dump; although it dismissed the case for procedural reasons, the Committee noted that it raised "serious issues, with regard to the obligation of States parties to protect human life." 

Environmental contamination may also interfere with protected rights to property.  Declining property value as a result of environmental nuisance has been held to violate Article 1 of the First Protocol to the European Convention, which protects the peaceful enjoyment of possessions.  In assessing claims under this article, the European Court has employed a balancing test: is the taking of property proportional to a legitimate public interest?  Lack of just compensation generally means a taking will fail this proportionality inquiry.  The Court has therefore held that Article 1 was violated when the state has inflicted environmental harm on a person’s property without providing just compensation.  Similar claims might be made under Article 14 of the African Charter on Human and Peoples’ Rights, which states, "The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws."  It remains to be seen whether the African Commission will require just compensation, or employ proportionality analysis, to assess the legality of encroachments under this clause.  In addition, Article 17(1) of the Universal Declaration of Human Rights also protects the right to property; this provision has been cited by Tanzanian courts.  Another right that is likely to be implicated by environmental hazards is the right to health, which is protected by Article 16 of the African Charter:

1. Every individual shall have the right to enjoy the best attainable state of physical and mental health.
2.  States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.

This Article seems to be applicable both in cases where the state has actively interfered with the health of individuals, and where it has failed to meet its positive obligation to promote health.  In Free Legal Assistance Group v. Zaire, the African Commission held that the government’s failure "to provide basic services such as safe drinking water and electricity and the shortage of medicine" constituted a violation of the Article 16 right to health.   Violations of the right to health have also been found where sick detainees were not provided with medical attention.   The Commission has not interpreted the right to impose an unreasonable economic burden on the state "encompassing, for example, a right to universal health insurance.    Although the Charter was perhaps drafted in a forward-looking manner, to be interpreted as appropriate at a future time when such broad social and economic rights could be realized, for the moment the right to health has been construed to require only the most basic provisions.  Nonetheless, this right may be applicable to cases of environmental contamination that interferes with "basic services such as safe drinking water."

International environmental law also prescribes for procedural environmental rights that may be used by environmental justice advocates.  These include the right of access to information, the right to free expression, the right to participate in governmental decision-making, and the right of access to the courts of law.  Some of these procedural rights may fall within customary international law.   As a general matter, the right to due process is recognized by a number of different international conventions.   Article 10 of the Universal Declaration of Human Rights states that "everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations . . .." 

Although the African Charter contains no specific provisions guaranteeing environmental procedural rights "such as access to information about environmental hazards" it contains a number of general procedural protections that are applicable in the environmental context.  Article 7 guarantees every person "the right to have his cause heard," including a right to appeal.  Presumably, this right is applicable to both the criminal and civil contexts, such that citizens have access to courts for redress of grievances as well as protection in the course of criminal investigations.  Article 7(1) sections (b), (c), and (d) and article 7(2) guarantee rights specific to the criminal context: the rights to be presumed innocent, to a defense including counsel, and to a speedy trial, and a prohibition on ex post facto crimes. 

The Draft Declaration of Principles on Human Rights and the Environment contains a very specific list of environmental procedural rights that may serve as a prototype for advocates, or someday as evidence of emerging customary international law norms:
 

[Principle] 15. All persons have the right to information concerning the environment. This includes information, howsoever compiled, on actions and courses of conduct that may affect the environment and information necessary to enable effective public participation in environmental decision-making. The information shall be timely, clear, understandable and available without undue financial burden to the applicant.
16. All persons have the right to hold and express opinions and to disseminate ideas and information regarding the environment.
17. All persons have the right to environmental and human rights education.
18. All persons have the right to active, free, and meaningful participation in planning and decision-making activities and processes that may have an impact on the environment and development. This includes the right to a prior assessment of the environmental, developmental and human rights consequences of proposed actions.
19. All persons have the right to associate freely and peacefully with others for purposes of protecting the environment or the rights of persons affected by environmental harm.
20. All persons have the right to effective remedies and redress in administrative or judicial proceedings for environmental harm or the threat of such harm. 

A more recent elaboration of environmental procedural rights is  the Rio Declaration . Principle 10 of the Rio Declaration stipulates that: 

"Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided." 

At regional levels (and here we refer to various regions around the world) there are also various legal instruments that incorporate provisions guaranteeing the role of civil society in environmental decision making. Let us begin with the Aarhus Convention. The United Nations Council for Europe adopted the Convention in 1998. There Aarhus Convention has detailed provisions on access to environment information, access to environmental justice and the right to participate in environmental decision-making. 

In the East Africa region, the 3 regional countries adopted the Treaty for the Establishment of the East African Community in 1999. One of the Schedules to the Treaty is the Memorandum of Understating (MoU) Between the Republic of Kenya and the United Republic of Tanzania and the Republic of Uganda for Cooperation on Environmental Management.  Both the Treaty and the MoU recognize the need to involve the civil societies in making decisions concerning issues affecting them.  Environmental procedural rights like those set forth by the Draft Declaration do not (by definition) provide any substantive protection against environmental harm.  Ultimately, if the state complies with the proper procedures, its ability to take action that harms the environment or otherwise infringes people’s substantive human rights is legally unfettered.  Still, the procedural rights strategy may be fruitful for a number of reasons.  First, there is independent value in public participation and access to information.  Enforcement of these procedural rights may help to build a democratic culture in the long run, and in the short term it will at least ensure that citizens know what dangers they are being exposed to, which may reduce negative health consequences.  Second, the use of full and open procedures may raise the political or economic costs of infliction of environmental harm.  That is, by opening government decision-making to public scrutiny, these procedures may bring beneficial public pressures to bear on the substance of those decisions.  They may also discourage environmentally harmful behavior by making it more financially costly through expensive procedural requirements.

III. Constitutional and Legal Foundations to Environmental Justice in Tanzania as defined by Courts

III.1  The Right to Clean and Health Environment
Environmental rights and duties in Tanzania are imbued with the Bill of Rights entrenched in the country’s Constitution. The Bill of Rights was introduced for the first time 23 years after the country’s independence. But even after being introduced the bill of rights was suspended for three years for what was resonated as a move to give the government time to amend the laws so as to be in conformity with the Bill of Rights and amend other administrative procedures to allow the smooth operation of the Bill of Rights. Four years (i.e. 1992) after the Bill of Rights had became operational, the Presidential Commission on Multi-Party Democracy found about 40 pieces of legislation to be in conflict with the constitution and impeding the citizens’ rights. Efforts to streamline the legislative framework so as to align with the constitution has not been so forthcoming and hence leading the court to now and then declare some laws to be repugnant to the constitution and hence to be scrapped from the statute books.

One of the fundamental environmental rights contained in the Constitution is the Right to Life and its protection by the Society . The High Court has extrapolated the interpretation of this right to include the ‘right to clean and healthy environment’. In two consecutive cases of  Joseph Kessy & Ors. Vs. Dar es salaam City Council  and that of Festo Balegele vs. Dar es salaam City Council , the High Court has reiterated on the Tanzania citizens’ right to clean and healthy environment. In the case of Joseph Kessy’s case, the Judge succinctly declared that:
 

"I will say at once that I have never heard it anywhere for a public authority, or even an individual, to go to court and confidently seek for permission to pollute the environment and endanger people’s lives, regardless of their number. Such wonders appear to be peculiarly Tanzanian, but I regret to say that it is not given to any court to grant such a prayer. Article 14 of our Constitution provides that every person has a right to live and protection of his life by society. It is therefore a contradiction in terms and denial of this basic right to deliberately expose anybody’s life to danger or what eminently monstrous, to enlist the assistance of the Court in this infringement."

III.2 The Right to participate in Decision making processes 
Generally, the practice of involving the public in decision-making processes is a governance issue. In an ideal democratic society, the public is, as a matter of law, involved in critical decisions that may affect their daily lives.  In Tanzania, that culture is yet to develop . The Constitution, on the other hand, requires administrative bodies and the executive to involve the public in matters that are of concern to their welfare. Article 21 provides for the right of the public to take part in the governance of the country. The public can either do so directly or through their elected representatives.

The historical backdrop to the dominance of the executive in decision-making processes starts with the colonial era. The colonial government had laid down some administrative procedures that meant top-down approaches in reaching into policy decisions. When the country gained her independence in 1961, there were expectations that the independence government would have adopted popular participation processes. To the contrary, the colonial circulars were maintained and applied. Civil societies were muzzled and integrated into the ruling party machinery. 

In 1965 multi-party democracy was abolished and the parliament was made a committee of the ruling party. In effect, parliamentary debates were highly censored and influenced by the ruling party and hence became a rubber-stamping body. In addition, inputs from the public on any development process or any issue of public welfare that needed government intervention was to be channeled through the Ruling Part structures for vetting before being sent to the Government for a final decision. In that process, public input was diluted and not well reflected in the final decision.

With the adoption of the Bill of Rights in the Constitution in 1984, the Constitution now provides in general terms for the "freedom to participate in public affairs." Under Article 21 (2) the Constitution provides that:

"Every citizen has the right and the freedom to participate fully in the process leading to the decision on matters affecting him, his well being or the nation"

  "Stimulate public and private participation in programmes and activities for the national beneficial use of natural resources"  and 

"Undertake or promote general environmental educational programme for the purpose of creating an enlightened public opinion regarding the environment and the role of the public in its protection and improvement" ;

III. 3 The Right of the Public to Accessing Information 
In order for the civil society to be able to effectively participate in environmental issues, it must have access to environmental information. The right to receive and impart information is laid down in Article 18 of the Constitution.  Tanzania’s experience in implementing this right has clearly shown lack of political will to do so. As it was recently noted by President Mkapa"... politicians and government officials must espouse the attitudinal change that is necessary to facilitate access to, and flow of, quality information between government and the governed, through an accountable and responsible media."  He noted further that "Good governance is participatory....effective participation is informed participation, which is not possible without improved government communication ...." 

As admitted above by the President, the public is rarely informed of important decisions and projects that may have impacts on the environment or their welfare. Unofficial sources have served as a major source of information and when the public makes enquiries, officials do rarely respond. In addition, despite the enshrinement of right to accessing information by the Constitution, that right is diluted by the ‘claw back clauses’, which purport to subordinate the guaranteed right to ‘other specific written laws’. Article 18 states that:

"Subject to the laws of the land, every person is entitled to freedom of opinion and expression, that is to say, the right to freely hold and express opinions and seek, receive and impart information and ideas through any media and regardless of frontiers....freedom from interference with correspondence is also guaranteed"

"every citizen has a right to be kept informed of the developments in the country and in the world which are of concern to the life of the people and their work and of question or concerns to the community"

"All persons shall be by law required to safeguard state and communal resources of the United Republic, state property and all property jointly owned by the people as well as to respect another person’s property" 

III.4 The Right of Access to Environmental Justice 
Civil societies also can play an important role of protecting the environment if they have guaranteed access to the justice system. The Bill of Rights under the Constitution provides for the right of access to justice for Tanzanian citizens. Article 26 provides for the right to seek legal redress in courts and the duty to upheld the Constitution and ensuring that it is protected by everyone. According to Article 26 (2);

"Every person is entitled, subject to the procedure provided under the law, to institute proceedings for the protection of the Constitution and legality"

The court enumerated a number of factors that necessitated the entrenchment of right to sue in public interest. It outlined one of the reasons to be that the majority of Tanzanian people are illiterate and therefore unaware of their rights. In addition, the court held that even if they are aware of their rights, given their abject poverty, they do not have sufficient financial resources to afford the cost of legal services. The court also held that:

" Other factors should be listed but perhaps the most painful of all is that over the years since independence, Tanzanians have developed a culture of apathy and silence. This is large measure a product of institutionalized mono-party politics, which in impressive dimension, like detention without trial, supped up initiative and guts. The people found contentment in being receivers without being seekers."

In another case of Felix Mavika & 40 others vs. Dar es salaam City Commission and Ilala Municipal Commission . The plaintiffs, who were being represented by the Lawyers’ Environmental Action Team, were seeking for court orders to restrain the defendants from dumping wastes in Vingunguti area clearly designated as residential in the city council’s own master plan. In determining one of the applications in this case, the Court upheld the principle of the right of individuals to sue in public interest.

Since most civil societies are aware of the rights guaranteed by the Constitution, they have a duty to uphold the law and the public interest environmental rights. In doing so, they can improve the environmental jurisprudence in Tanzania and environmental management practices in general. 

IV. Some Case Studies of Environmental Injustices in Tanzania 

Geita Gold Mine 
The Geita Goldmine is located near the shores of Lake Victoria and started its large scale operations in June 2000.  The mine was initially owned by  Ashanti Goldfields, a Ghanaian company but later on sold the franchise to Anglo-Gold of South Africa.  Before the goldmine started its operations environmentalists had raised concerns about its environmental safety, the major feared environmental impact is the sodium cyanide, a chemical used to extract gold from ore. The way the mine was designed there is a persistent fear that sodium cyanide might leak from the tailing dams into groundwater and nearby lakes and streams.  Sodium cyanide is highly toxic; it may persist in the water supply for months or years, and can have very serious health effects.   Moreover, a second major reason for opposition to the gold mine was that its construction required the forced displacement of between 900 to 1800 villagers whose homes were in the area.  This area also included a cotton ginnery that provided the central income source for the local population .  The required environmental impact assessment produced by Ashanti virtually ignored the existence of the ginnery and, where it did mention it, misrepresented its distance to the mine.   Furthermore, the opening of the industrial mine was a major threat to the livelihoods of the local villagers and small-scale artisanal miners that had until that point been operating in the area who were forcefully expelled from the area.   In spite of these concerns, the Tanzanian government approved the project, ordering Ashanti Goldfields, then the sole owner, to pay compensation to the displaced villagers.

According to media reports, the deadly consequences of cyanide poisoning began to be apparent even before the mine was officially opened in August 2000.  Heavy rains caused mining waste, or tailings, to overflow a dam built to contain it and enter streams below.  Animal life in the area began to suffer first, with dead fish and frogs washing ashore along the banks of the Nyakabale river.  The first human victims were a family of four, who all died after eating a rabbit they had found, dying, near the tailings dam.  Subsequently, an unusual number of women reported suffering miscarriages.  Animal deaths continued, ruining the livelihood of small farmers in the area.  For example, on a single day in November 2000, one herdsman lost 18 herds of cattle and two sheep, which all died within hours of drinking from the river.  In January 2001, a woman in the village of Nyakabale, near Geita, bathed in the river not long after a heavy rainstorm.  She died within 24 hours, her swollen, pink body showing classic signs of cyanide poisoning. 

Meanwhile, a major corruption scandal has been brewing surrounding the plan to compensate displaced villagers.  At least 857 people claim to have been denied compensation entirely, while many others were paid less than they had been promised.  Officials of the mining companies claim that they have made the required payments to the Tanzanian government, but that money was simply pocketed by corrupt government officials rather than being disbursed to individuals.  The government has launched an investigation, but the money still has not been disbursed .   Furthermore, no compensation was provided to the small-scale miners driven out of business by the launch of the industrial-scale operation, nor to the area’s cotton ginnery or its employees. 

These events implicate a number of Tanzania’s human rights obligations.  First, the poisoning or risk of poisoning of villagers violates the right to life guaranteed by the Constitution, the African Charter, the Universal Declaration, and customary international law.  It also is a potential violation of the right to health, which is provided by Article 16 of the African Charter; as in Free Legal Assistance Group v. Zaire, discussed in Part I(B) above, the right to health may be violated by a government’s failure to provide (and protect) a safe drinking water supply.  To whatever extent a right to a clean environment exists, it would seem that this type of poisoning violates it.  Furthermore, by interfering with the villagers’ traditional lifestyles--including their ability to raise animals--the events at Geita may have violated the right to a private life, under the same theory followed by the European Court in G. and E. v. Norway.  Finally, the displacement of villagers without just compensation may violate their right to property and other rights; issues surrounding enforced displacement are discussed further below in the section on the Mkomazi game reserve. 

Being forced to abandon one’s home, particularly without compensation, may violate the Tanzanian Constitution as well.  Article 16 states that each person’s dwelling is "inviolable," and that each person is therefore entitled to respect for his home.  Furthermore, Article 17 guarantees each person freedom of residence in the location of his choosing.  Each of these are, of course, subject to Article 30’s clawback provisions, which may allow these rights to be overridden in the name of "development and utilization of mineral resources. Even so, such exceptions would have to be provided for by law; in this case, the deprivation of the money the villagers were supposed to be paid in compensation was a clear violation of law.  In addition, water contamination is prohibited by domestic regulations and by the penal code. 

In addition, the villagers’ procedural rights may have been violated as well, both under Tanzanian and international law.  There were also numerous inadequacies in Ashanti’s environmental impact assessment process.  In addition to bringing the project out of compliance with domestic statutory requirements,  these shortcomings may constitute an infringement of the human right to access to information regarding environmental hazards.     Another procedural requirement of Tanzanian law is that holders of mining licenses may not exercise their mineral rights until they receive written consent from all persons who inhabit houses or buildings within 200 meters of the land being mined.  Ashanti failed to comply with these requirements, and not only entered but demolished the villages of Mtakuja and Nyamalembo without the written consent of the villagers.  Furthermore, Ashanti failed to obtain consent from the proper officials for its operations near roads and highways. 

Allegations of Killings  in Serengeti National Park
The relationship between protection of human rights and environmental protection is not a simple or one-dimensional one.  In addition to ensuring respect for the natural environment and resources of all people, human rights advocates must also be vigilant that abuses are not committed in the name of environmental protection.  The traditional ways of life of indigenous populations may clash in some circumstances with government’s legitimate environmental objectives.  In Tanzania, however, the outcome of these clashes has too often been extreme human rights abuses against, or indeed wholesale slaughter of, those indigenous people.  For example, in Serengeti National Park, game wardens have killed en masse people engaging in traditional hunting practices in the park.  Conducted without trial and in the absence of any imminent danger, these summary executions are nothing short of murder.  Tolerated and, indeed, encouraged by authorities, these murders constitute serious human rights violations contravening Tanzania’s obligations under international law. 

Although Tanzanian authorities have not been forthcoming with information about these killings, the Legal and Human Rights Centre (LHRC) in Dar es Salaam conducted an independent investigation.  Based on interviews with surviving eyewitnesses and family members of victims, LHRC’s recently released report documents at least ten different incidents between 1995 and 1999 in which park wardens shot and killed hunters.   In many of these incidents, numerous persons were killed.  For example, on 20 September 1997, guards rounded up a group of nine hunters, forced them to stand in a tightly-packed line, and shot a single bullet through the back of the last in line.  The bullet passed through eight of the men, all of whom were killed, and lodged in the body of the ninth, who survived after being left for dead by the guards.  Survivors of other killings gave similar accounts.

In none of the instances documented by the LHRC report have the wardens who committed the killings been arrested and brought to justice.  Most of the events are not even under investigation.  Not only has the state been complicit in these killings, but it may have explicitly ordered them.  The LHRC report states that the killings began in the mid-1990s when Dr. Juma Ngaswongwa, then the Minister of Tourism and Natural Resources, issued an order to game wardens to shoot on sight anyone found poaching in the park. These elements of direct and indirect state responsibility bring the Serengeti tragedies into the realm of international law.  These killings violate several basic tenets of international human rights law discussed in the above sections.  Most obviously, they deprive their victims of the right to life.  In addition, they may violate the right to human dignity, the right to a livelihood, the right to a private life, and the special rights of indigenous groups.

The victims of the documented shootings were indigenous persons from villages bordering the park, whose traditional livelihood and food source has always been hunting wildebeest, gazelle, and buffalo from the Serengeti plains.  Many of them stated that they hunted, notwithstanding the laws against it, because they had no other way to provide food or to raise money for school uniforms or tuition.  The protection of wildlife is a valid and important state interest.  It is not easy to determine how best to balance this interest against that of the indigenous peoples in protecting their traditional ways of life.  Certainly, a basic concern for the rights and welfare of these people demands that they not be placed in an insoluble catch-22: hunt and risk being shot by wardens, or don’t hunt and let your family starve.  Rather, other economic opportunities--perhaps including some hunting rights, which might be limited to a certain area--must be made available before the local people can be expected to comply with wildlife protection laws.  As stated in the Draft Declaration of Principles on Human Rights and the Environment, indigenous persons enjoy the “right to security in the enjoyment of their means of subsistence." 

Such provisions would be consonant with the requirements of Article 11 of Tanzania’s Constitution, which requires the state to, "within the limits of its economic capacity and development, make adequate provision for securing the right to work, to education and to public assistance in cases of old age, sickness and disablement, and in other cases of undeserved want."  Additionally, Article 9 requires the government to commit itself to the eradication of poverty and economic inequity.  These clauses are not subject to Article 30’s clawback provisions, which apply only to the Bill of Rights (Part III, Articles 12-30).  However, Articles 9 and 11 do not create individual rights that are enforceable against the government.

The particular human rights concerns faced by indigenous persons are further explored in the section below on the Mkomazi Game Reserve case.  However, even assuming that the no-hunting policy on the Serengeti constitutes an appropriate balance between ecological and human interests, the method of its enforcement still constitutes a gross violation of human rights.  There is no justifiable law enforcement objective for the shoot-on-sight policy as practiced.  In the instances documented by LHRC, wardens did not shoot hunters in order to protect animals from imminent attack; that is, when they were killed, the hunters were not in the process of hunting anything.  Rather, they had already been rounded up and arrested by wardens and were completely at their mercy.  The killings can only be characterized as punitive in character, not preventive.  The game wardens acted as police, judge, jury, and executioner.  Summary executions such as these are as unjustified in the context of environmental law enforcement as they are in any other context. 

Tanzania’s Bill of Rights provides due process protections that, except for their fragility in light of the Article 30 clawback, are generally concordant with those provided by international law.  Article 13(6) mandates that the state provide "that every person shall, when his rights and obligations are being determined, be entitled to a fair hearing by the court of law or other body concerned, and be guaranteed the right of appeal or to another legal remedy."  Furthermore, Article 13(6) of the Constitution also prohibits "inhuman and degrading treatment." Being lined up and shot through the back without trial constitutes inhuman and degrading treatment.  It also reflects a lack of the basic respect for human dignity that is enshrined in Article 9 of the Bill of Rights (mandating "maintenance of respect and due regard for the dignity and all the other rights of man").  Human dignity is also a cornerstone of international human rights law.  The African Charter prohibits "cruel, inhuman, or degrading punishment and treatment" in Article 5, which also guarantees the “right to the respect of the dignity inherent in a human being."  The summary executions that took place in the Serengeti clearly showed utter disrespect for this dignity, and were a flagrant violation of both Tanzania’s Constitution and international law.

Kazimzumbwi Forest Reserve
Located along the Tanzanian coast some 30km southwest of Dar es Salaam, the 4860-hectare Kazimzumbi Forest Reserve is an ancient and complex ecosystem with a variety of tree life believed to have evolved over ten million years.   It is home to approximately ninety plants that are used as traditional medicines, including some that are found only in the reserve.  As a gazetted forest reserve, it is subject to the management of the central government of Tanzania.  Nonetheless, the reserve has suffered severe environmental damage in recent decades due to a variety of different pressures.  Its proximity to Dar es Salaam has made it an easy source of illegally obtained forest products, particularly charcoal.  The local communities living in the agricultural areas adjacent to the reserve have, because of economic hardship, come to depend on the trade in these products as their means of subsistence.  The result has been accelerating deforestation; furthermore, illegal hunting has killed off most of the animal populations that once resided in the reserve.  These practices are unsustainable, threatening both the natural environment of Kazimzumbwi and the long-term economic viability of the surrounding villages.  The failure of the central government’s top-down methods of resource management suggests a need for an approach that better addresses and incorporates the concerns of the people who are directly affected. 

Instead, the government’s method of regulation has been heavy-handed and has spurred conflict and possible human rights violations.  Although nobody contests the government’s right to regulate or ban human activities within legally designated conservation areas, conflicts have arisen surrounding the location of the reserve’s borders and the government’s means of implementing its conservation strategies.  In 1990, a local man named Mtimkavu Mohamed was convicted of illegal cultivation in the reserve.  He challenged his conviction, arguing that the area had never been properly “gazetted” as a government reserve.  In Tanzania, when the government takes control of land for conservation purposes, the law requires that notice be published in the official government gazette.  This is a procedural protection designed to provide fair warning to occupants or users of the area.  Furthermore, private owners of land are required to be compensated for a government taking.  In the Mtimkavu Mohamed case, the Court of Appeal agreed with the appellant that the government had failed to comply with either of these requirements. 

In response, the government published an official notice in the gazette in 1997, giving notice of the eviction of all persons residing in the reserve area.  Although the borders of the reserve remained unclear, forest administration officials claimed that they encompassed the villages of Chanika and Nzasa.  The villagers were therefore ordered to leave; however, they were given no alternative place to go.  Therefore, many of them refused to leave.  In 1998, the police forcibly removed approximately 1,000 people from their homes, which the police then burned to the ground.  One villager was killed, and another injured, in the ensuing fracas.  Agricultural fields were also burned.  These events did not accomplish the goal of conservation; the people, lacking anywhere else to go, still live at the edge of the forest and now, with their fields destroyed, are forced to go further into the forest in search of a means of subsistence.  Furthermore, tensions between the villagers and forestry officials are so high that officials are presently afraid to enter the reserve without police escort.

Following the 1998 disaster, a group of the Nzasa villagers filed a lawsuit in the High Court alleging that their rights had been violated because the village did not lie within the legal boundaries of the gazetted forest reserve.  This lawsuit is still pending.  An analysis of maps, legislation, and demarcated boundaries by Utouh Magdalena of LEAT supports the villagers’ claim, and argues that any change to those legal boundaries would need to have taken place pursuant to appropriate notice and hearing procedures.  Furthermore, compensation would have to be provided to the villagers.

The Kazimzumbwi case vividly demonstrates the complexity of the issues involved in the balancing of environmental and human rights concerns.  On the one hand, it is clear that both human and ecological interests demanded that something be done to end the unsustainable practices that were destroying the forest.  On the other hand, the strategy of burning down villages seems extreme at best.  It is unclear whether international law affords a remedy to the Nzasa villagers beyond that provided by domestic law.  As discussed above regarding the Mkomazi Game Reserve, international law may recognize a right against forced eviction or, more generally, a right not to be displaced.  These rights are not absolute, but can be overridden as necessary for legitimate conservation purposes; nevertheless, evictees are entitled to fair notice, consultation, compensation, and relocation assistance.  Furthermore, due process may require that the villagers have a chance to contest the legal basis of their eviction in a court of law, before the fact—rather than only after their homes and possessions have been burned.  If nothing else, the Kazimzumbwi case points the way to a need for a better forest management policy, one that incorporates the needs and concerns of affected human populations.  This illustrates the significance of procedural environmental rights as a practical matter: active participation of the community in the shaping and implementation of environmental policy may be necessary for that policy’s effectiveness, as well as for the protection of community interests.

CONCLUSION
This paper has examples of the legal and practical aspects of environmental justice and international level and domestic scenes by drawing case studies from Tanzania.  These examples have shown that the challenge in reconciling development needs with environmental rights is serious especially when the structures of governance are weak.  However, this paper has shown that rigorous advocacy using the existing domestic law and precedents from other countries could help securing environmental justice.   As a first step, environmental advocates, in addition to pressing for enforcement of environmental laws, should look to the environmental dimensions of the human rights protections in the constitution as possible avenues for legal redress.   Second, where domestic law fails to provide an adequate remedy--or where the courts fail to enforce that law--advocates may look to international law as an alternative.  Advocates may seek to bring international law claims in domestic courts, either independently or concurrently with domestic law claims.  Such an approach has been successful in some cases, although invocation of international law by domestic courts remains fairly rare.  Alternatively, advocates may turn to the international legal system.  There are two main options available: the United Nations system and the African Commission.  Both have considerable weaknesses, and neither has the same type of enforcement mechanisms available, as do the domestic courts.  Nevertheless, they may be useful means of calling attention to a cause and generating political pressure on the government.

 As a practical matter, environmental and human rights advocates should be conscious of the disadvantages to an approach that relies on international law.  In Tanzania’s domestic legal system, such claims may be unfamiliar or even unwelcome.  Meanwhile, the international institutions lack enforcement power and furthermore lack the capacity to hear adequate numbers of cases each year.  Moreover, any such strategy has costs in terms of financial and human resources, and can be expected to take time--time that victims of human rights abuses may not have to spare.  These strategic decisions obviously must be tailored to the specific case and to the specific organization bringing a claim, taking into account resource demands, time constraints, and the relative strengths of the legal claims. 

In the long run, the best hope for true environmental justice probably lies not in litigating individual cases but in fostering a political culture where both the environment and human rights are taken seriously.  No country in the world has achieved perfection in this regard, and Tanzania clearly has a long way to go.  It will help if the new Commission for Human Rights and Good Governance becomes an effective institution, one that takes into account and is willing to enforce all Tanzania’s obligations under international law.  Domestic litigation and international legal advocacy, in concert with a range of social and political strategies, may be necessary to push the process of changing the political culture along.  It is an uphill battle, and in any event some of the conflicts between various environmental and human interests will remain difficult to resolve; both traditional lifestyles and the legitimate goals of development may often conflict with ecological conservation.  Nonetheless, a government that respects the rule of law and the rights and needs of citizens would be best equipped to approach those conflicts in creative and flexible ways.  Helping to shape this kind of system should be a major goal of both environmentalists and human rights advocates in Tanzania. 

Legal and Institutional Arrangements for Public Participation and Environmental Justice
Environmental Justice Principles
Environmental Justice, Human Rights and the Environment: A dicussion note with Scattered examples from Tanzania