ZORORAI NKOMO
Under section 73(1), the Constitution of Zimbabwe stipulates that every person has a right to an environment that is not harmful to his or her health or wellbeing.
This inference from this constitutional provision means that the government and all organs of the State in Zimbabwe have a fiduciary duty to preserve the environment.
The fiduciary duty calls for all organs of State, at all levels, to protect the environment in trust for all people.
They should make all reasonable steps to jealously guard and protect the environment for the contemporary and future generations to come.
Section 73(1)(b) of the Constitution further provides that everyone has the right to have the environment protected for the benefit of present and future generations, through reasonable legislative and other means.
A well calibrated jurisprudential, environmental philosophical standpoint and a well thought out Constitutional interpretation of this provision contemplates that the constitution envisages our present generation to hold this sole planet, the earth, in trust for the country’s next generations to come.
The trusteeship position which the constitution stipulates comes into being with the responsibility of every person, and all institutions to protect the environment.
Since environmental rights are well entrenched in the Bill of Rights of the Constitution, this is a clear signal that it should be the duty of a court of competent jurisdiction to make sure that, the tenor, purports and spirit of environmental rights as espoused in the supreme law of the land is carried out.
I know that the ontological environmental protection question is clear, but the ongoing pendulum is how to address the epistemological question, on how we are going to protect our environment.
That’s the solution I am trying to propose to all stakeholders, institutions and organs of the State at every level.
The first step towards the realisation of environmental rights in Zimbabwe is the creation of a Specialised Environmental Court.
The creation of Specialised Courts, although in other jurisdictions, torched various debates among legal scholars, it can help in addressing some challenges faced by humanity on this planet.
In Zimbabwe, creation of Specialised Courts, is not a foreign phenomenon. We have the Labour Court, the Constitutional Court as one of specialised courts.
They play a very important role in the efficient and quick administration of justice especially on matters which require areas of specialisation. The same must happen to our environment.
Therefore, the creation of the Environmental Court to deal with all environmentally related issues, is critical
In July 2018, the Environmental Management Agency (EMA) fined Chitungwiza Municipality US$30 for discharging raw sewage into nearby streams.
The Judgement was handed down by EMA board chairperson Ambassador Zenzo Nsimbi after deliberation with his ten member board in Harare.
The US$30 fine imposed on Chitungwiza Municipality was for contravening section 57 of the Environmental Management Act.
Over the past few years, EMA’s credibility in protecting the environment has been put under the spotlight.
Section 57(1) of the Environmental Management Act provides that “Any person, who discharges or applies any poison or toxic, noxious or obstructing matter, radioactive waste or other pollutants or permits any person to dump or discharge such matter into the aquatic environment in contravention of water pollution control standards, shall be guilty of an offence and liable for imprisonment for a period not exceeding five years, or to a fine not exceeding ZWL$5m, or to both such fine and such imprisonment”
When using legal lenses in interpreting such a statutory provision, it creates a million dollar question.
How can a competent board come to the conclusion of a US$30 fine for a juristic person like a whole local authority for risking people’s lives by discharging raw sewer in the environment?
Is the US$30 equivalent to the damage caused to the environment?
Is that decision reasonable and equitable in a democratic society based on human dignity, equality and freedom?
If this matter was being handled by a court of competent jurisdiction, was the court going to arrive at such a verdict?
Is EMA board really sensitive about protection of the environment?
With such a decision does EMA have competencies and capacities to have a fiduciary duty to protect our environment?
All these questions will be answered on another day.
In August 2020, EMA suspended operations of one of Zimbabwe’s leading cement producers, Lafarge Cement over pollution.
EMA directed that Lafarge operations were only going to resume after all measures were put in place to protect the environment and surrounding communities.
From an environmental law perspective, the conditions which were given to Lafarge as a juristic person cannot be the one which a reasonable person or court can arrive at. In other jurisdictions such conduct by a juristic person can warrant a class action where the company can be compelled to pay damages for upsetting the society and the environment at large.
A classic example is South Africa is that where a South African court, in 2021, handed a landmark ruling and awarded a R5bn, which is equivalent to US$332m in a protracted legal battle between mining companies and mine workers.
The workers were compensated for illnesses which they contracted over a long period due to negligence by mining companies.
The South African class action victory is one which Zimbabwe ought to adopt to punish all persons, either natural or juristic persons, who put people’s lives at risk by deliberate and negligent pollution of the environment.
In August 2020, EMA, closed operations of Sunny Yi Feng, a tile manufacturing company in Norton over pollution.
This decision was a subsequent failure by the company to comply with an order which was previously issued to the company on the August 5, 2020, which stated that Sunny Yi Feng should establish emission sampling points in preparation for a sampling exercise that were to be facilitated by EMA.
A reasonable presumption from this case is that, the tile manufacturing company’s failure to comply with EMA’s decision was premised on two presumptions.
The first presumption is that of the company’s genuine inability to comply due to the nature of its operations.
The second presumption is that the company deliberately flouted those regulations knowing the history of poor environment compliance checks by our law enforcement agents.
If Zimbabwe creates a vibrant Environmental Court system where polluters of the environment would be prosecuted, companies losing their operational licences, municipalities fined huge amounts of monies, we can protect our environment which is now becoming a pandemic.
I am not trying to be draconian, but strict command and control mechanisms can save the environment in Zimbabwe.
Zororai Nkomo is a Zimbabwean journalist, lawyer and environmental justice activist who writes in his own personal capacity. He can be contacted on zoronkomo@gmail.com
