Zimbabwe in 2013 witnessed the ushering in of a new democratic constitutional order which rendered the Lancaster house constitution inapplicable in the administration of justice.
In Africa and the world over, the 2013 Constitution’s Bill of Rights is celebrated as one of the progressive which I agree with after an extensive comparative analysis.
Section 73 of the Zimbabwean Constitution provides comprehensive environmental rights, which is a positive development in protecting the environment. However, the discourse of exporting juvenile elephants created a heated debate among animal rights activists and environmental justice players.
It is an undisputed fact that the country’s elephant population is growing with official figures showing that we now have over 100 000 elephants.
Zimbabwe Parks and Wildlife Management Authority (ZimParks) once found itself in the storm of exporting baby elephants to China and the United Arab Emirates.
In July 2021, a non-profit making organisation known as Advocates4Earth approached Zimbabwe’s High Court seeking a court order to ban the exportation of elephants by ZimParks.
In its court papers the non-profit making organisation contended that there were no proper consultations with relevant stakeholders, which is the major reason for this insight.
From an administrative law perspective, ZimParks is an organ of the state with capacity to execute an administrative action as contemplated in section 2(a) of the Administrative Justice Act.
As a creature of statute ZimParks must make sure that every decision which might affect the environment must comply with all tenets of Just Administrative Action which I am going to touch on in this article.
From a legal point of view and environmental justice perspective, any decision with public interest, authorities are obliged to conduct public participation and extensive consultations which ZimParks failed in exportation of elephants.
A legal question which might be asked is whose interests or rights were affected by the decision to export juvenile elephants.
To answer that legal question, under the current Constitutional order, standing before the law which is known as Locus standi in legal circles has been substantially expanded with the aim of improving protection of human rights, including environmental rights of juvenile elephants.
Section 85(1) of the2013 Constitution states that “any of the following persons, namely (a) any person acting in their own interests; (b) any person acting on behalf of another person who cannot act for themselves; (c) any person acting as a member, or in the interests, of a group or class of persons; (d) any person acting in the public interest; (e) any association acting in the interests of its members; is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation”.
It must also come to the attention of ZimParks that environmental rights are now entrenched in the Bill of Rights which subsequently means that, as an organ of the state, it has no autonomy to unilaterally make any decision which affects the environment without conducting a thorough public participation exercise.
The preamble of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which Zimbabwe should respect as an actor in the International Community, recognise that wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come.
The profound provision I would like to highlight from this preamble is the phrase “protected for this and the generations to come”.
From an International law perspective, Zimbabwe should respect the legal provision of the CITES although it is a soft law with persuasive force as compared to our municipal laws.
CITES is an international instrument agreement between governments. The mischief or the defect which this international instrument seeks to cure is to ensure that international trade of wild animals and plants on this planet is not going to threaten the existence and survival of species on earth.
In 2019, CITES revealed that between 2012 and 2019 more than 140 juvenile elephants were exported to China. It further alleged that four baby elephants were exported to the United Arab Emirates.
However, information from the litigant, Advocates4Earths, indicated that over 20 of the juvenile elephants died in the processing of capturing and transportation.
This information remains secret on what really transpired, a scenario which leads to a reasonable suspicion that the exportation of juvenile elephants was not transparent as contemplated by a democratic society based on human dignity, equality and freedom. The debacle of elephant exportation in Zimbabwe makes any environmental justice player to think on whether authorities complied with the tenets of Just Administrative Environmental Action.
Administrative law is an important component of environmental law, specifically Just Administrative environmental action.
Prominent environment law scholar, Glazewski once said ‘‘in a sense, environmental law can be described as administrative law in action, because environmental conflicts frequently turn on the exercise of administrative decision-making powers”
In the same vein, the decision to export elephants was an administrative action, which was supposed to be exercised procedurally as contemplated in section 68(1) of the Constitution.
Section 68(2) our Constitution further provides that any person whose interests, freedom and legitimate interest has been adversely affected by any administrative action has the right to be given written reasons for such a decision.
The preamble of the Administrative Justice Act provides “for the right to administrative action and decisions that are lawful, reasonable and procedurally fair; to provide for the entitlement to written reasons for administrative action or decisions; to provide for relief by a competent court against administrative action or decisions contrary to the provisions of this Act”.
The decision to export elephants, by Zimbabwe Parks and Wildlife Management Authority, failed to be compatible with section 68 of our Supreme law of the land, and, therefore subsequently unconstitutional.
When administrators or an organ of the state like the Zimbabwe Parks and Wildlife Management Authority exercise its discretionary powers and take any decisions, such decisions may have a direct or indirect negative or positive influence on the environment.
ZimParks had the statutory obligation to make sure that the decision exporting people’s elephants was lawful, reasonable and procedurally fair.
The reason I am referring to “people’s elephants” is that those elephants do not belong to ZimParks, but ZimParks has a statutory fiduciary duty to keep those animals in trust for the people of Zimbabwe.
Instead of providing written reasons for exportation of juvenile elephants, the whole process was shrouded in mysteries.
In addition, it was supposed to provide written reasons why it came to that conclusion of allowing exportation of elephants.
For Zimbabwe’s wildlife to successfully realise constitutional provisions, the Parks and Wildlife Management Act should be reformed and aligned in line with the new constitutional order to promote transparency and accountability in management of the country’s wildlife resources.
Zororai Nkomo is a Zimbabwean journalist, Lawyer and Environmental Justice Activist, he writes in his own personal capacity. He can be contacted on zoronkomo@gmail.com.
