Judicial Mandate in Safeguarding Environmental Rights from the Adverse Effects of Mining Activities in Zambia

Keywords: Environmental rights, mining, James Nyasulu, Martha Muzithe Kangwa, Zambia

Abstract

The protection of the environment from the effects of mining activities, though cardinal, has been a daunting task in Zambia. A polluted environment affects the rights of those who depend on a clean one for their survival. In remedying the pollution caused by mining activities, numerous legislative and policy frameworks have been put in place and institutions responsible for ensuring compliance operationalised. Notwithstanding such interventions, the problem of pollution emanating from mining activities has persisted. This has led individuals and spirited non-governmental organisations to bring legal actions firstly against erring mining companies for their failure to comply with environmental regulations, and secondly against the government for its failure to ensure compliance by the mining companies. The courts before whom such matters have been brought have seemingly prioritised the supposed development brought by investment in the mining sector over the environmental rights of those whose livelihood is anchored in a clean environment. The article underscores the mandate of the courts in safeguarding the environmental rights of persons whose survival is dependent on a clean environment. In doing so the article critically examines the cases which have come before the courts and how these cases have been dealt with in relation to the protection of the environment and ultimately an individual's environmental rights.

 

Google_Scholar90.png 

Author Biography

Chipasha Mulenga, University of Law

Executive Dean, School of Law

References

Bibliography

Literature

Alfredsson and Ovsiouk 1991 Nord J Int'l L
Alfredsson G and Ovsiouk A "Human Rights and the Environment" 1991 Nord J Int'l L 19-27

Birnie and Boyle International Law and the Environment
Birnie P and Boyle A International Law and the Environment 2nd ed (Oxford University Press Oxford 2002)

Bosek 2014 AHRLJ
Bosek JK "Implementing Environmental Rights in Kenya's New Constitutional Order: Prospects and Potential Challenges" 2014 AHRLJ 489-508

Boyd Environmental Rights Revolution
Boyd DR The Environmental Rights Revolution: Constitutions, Human Rights, and the Environment (PhD-thesis University of British Columbia 2010)

Churchill "Environmental Rights in Existing Human Rights Treaties"
Churchill RR "Environmental Rights in Existing Human Rights Treaties" in Boyle A and Anderson MR Human Rights Approaches to Environmental Protection (Oxford Oxford University Press 1996) 89-108

Cullet 1995 NQHR
Cullet P "Definition of an Environmental Right in a Human Rights Context" 1995 NQHR 25-40

Fulton and Benjamin "Foundations of Sustainability"
Fulton S and Benjamin JA "Foundations of Sustainability" in UNEP Advancing Justice, Governance and Law for Environmental Sustainability (UNEP Nairobi 2012) 18-22

Hayward 2000 Political Studies
Hayward T "Constitutional Environmental Rights: A Case for Political Analysis" 2000 Political Studies 558-572

Kidd 2006 PELJ
Kidd M "Greening the Judiciary" 2006 PELJ 72-86

Markowitz and Gerardu 2012 Pace Envtl L Rev
Markowitz KJ and Gerardu JJA "The Importance of the Judiciary in Environmental Compliance and Enforcement" 2012 Pace Envtl L Rev 538-554

McLeod-Kilmurray "Lowering Barriers to Judicial Enforcement"
McLeod-Kilmurray H "Lowering Barriers to Judicial Enforcement: Civil Procedure and Environmental Ethics" in Paddock L et al (eds) Compliance and Enforcement in Environmental Law: Towards More Effective Implementation (Edward Elgar Cheltenham 2011) ch 12

Mohammad 2014 IJBM
Mohammad N "Environmental Rights for Administering Clean and Healthy Environment towards Sustainable Development in Malaysia: A Case Study" 2014 IJBM 191-198

Mulenga Foreign Direct Investment in the Zambian Mining Sector
Mulenga C Foreign Direct Investment in the Zambian Mining Sector: The Need for Environmental Protection and Human Rights Unpublished (LLD-thesis University of Pretoria 2017)

Osei-Hwedie 1996 J Soc Dev Afr
Osei-Hwedie BZ "Environmental Protection and Economic Development in Zambia" 1996 J Soc Dev Afr 57-72

Sakala Role of the Judiciary
Sakala JB The Role of the Judiciary in the Enforcement of Human Rights in Zambia (Image Printers Lusaka 2013)

Sands et al Principles of International Environmental Law
Sands P et al Principles of International Environmental Law 3rd ed (Cambridge University Press Cambridge 2012)

Shue Basic Rights
Shue H Basic Rights: Subsistence, Affluence, and US Foreign Policy 2nd ed (Princeton University Press Princeton 1996)

Case law

Attorney General v Law Association of Zambia (2008) ZR 21
Dominic Liswaniso Lungowe v Vedanta Resources Plc and Konkola Copper Mines Plc (2016) EWHC 975 (TCC)
Doris Chinsambwe v NFC Africa Mining (unreported) (2014) HK 374
James Nyasulu v Konkola Copper Mines, Environmental Council of Zambia and Chingola Municipal Council (2007) HP 1286
Konkola Copper Mines (KCM) PLC v James Nyasulu (Appeal No. 1 of 2012)
Lafarge Cement Zambia Limited v Peter Sinkamba (2013) ZMSC 31 (Appeal No 169 of 2009)
Martha Muzithe Kangwa v Environmental Council of Zambia, Nasla Cement Limited and Attorney General (2008) HP 245
Mtikila v Attorney General HCCS No 5 of 1993
Nkumbula v Attorney General (1972) ZR 204
People's Union for Democratic Rights v Union of India (1982) 3 SCC 235
Peter Kingaipe and Charles Chookole v Attorney General (2009) HL 86
Uganda Electricity Transmission Co Ltd v De Samaline Incorporation Ltd Miscellaneous Cause No 181 of 2004 (High Court of Uganda)
William David Carlisle Wise v Attorney General (1990-1992) ZR 124 (HC)
Zambia Community Based Natural Resources Management Forum, Zambia Institute of Environment Management, Zambia Climate Change Network, Chalimbana River Water Conservation Trust, Green Living Movement, David Ngwenyama v Attorney General and Mwembeshi Resources Limited (2014) HP/A/006
Zambia Revenue Authority v Post Newspaper SCZ Judgment No 18 of 2016

Legislation
Constitution of the Republic of Zambia (as amended by Act 2 of 2016)
Environmental Management Act 12 of 2011
Environmental Protection and Pollution Control Act Chapter 204 of 1990
Forestry Act 4 of 2015
Land Acquisition Act 2 of 1970
Lands Act 29 of 1995
Local Government Act 22 of 1995
Mines and Minerals Development Act 11 of 2015
National Heritage Conservation Commission Act 173 of 1989
Public Health Act 12 of 1930
Urban and Regional Planning Act 3 of 2015
Water Resources Management Act 21 of 2011
Workers Compensation Act 10 of 1999
Zambezi River Authority Act 17 of 1987
Zambia Wildlife Act 14 of 2015

International instruments
Stockholm Declaration of the United Nations Conference on the Human Environment UN Doc A/.CONF.48/14/Rev.1 (1973)

Informal discussions
Informal discussion with Zambia Environmental Management Agency, Head Office, Friday, 29 May 2015
Informal discussion with Green and Justice Organisation, Friday, 3 July 2015

Internet sources
Electoral Commission 2016 https://www.elections.org.zm/results/
2016_referendum
Electoral Commission of Zambia 2016 Referendum https://www.elections.org.zm/results/2016_referendum accessed 22 August 2016

Free Dictionary 2016 http://legal-dictionary.thefreedictionary.com/judiciary
Free Dictionary 2016 Judiciary http://legal-dictionary.thefreedictionary.com/
judiciary accessed 16 August 2016

Judiciary of Zambia 2016 http://www.judiciaryzambia.com/introduction/
Judiciary of Zambia 2016 Introduction http://www.judiciaryzambia.com
/introduction/ accessed 17 August 2016

Merriam Webster Dictionary 2016 http://www.merriam-webster.com/dictionary/judiciary
Merriam Webster Dictionary 2016 Judiciary http://www.merriam-webster.com/dictionary/judiciary accessed 16 August 2016

Muigua 2015 http://kmco.co.ke/wp-content/uploads/2018/08/RIGHT-TO-CLEAN-AND-HEALTHY-ENVIRONMENT-IN-KENYA.docx-7th-september-2015.pdf
Muigua K 2015 Reconceptualising the Right to Clean and Healthy Environment in Kenya http://kmco.co.ke/wp-content/uploads/2018/08/RIGHT-TO-CLEAN-AND-HEALTHY-ENVIRONMENT-IN-KENYA.docx-7th-september-2015.pdf accessed 12 March 2018

Parliament of Zambia 2007 http://www.parliament.gov.zm/sites/default/
files/documents/committee_reports/REPORT%20OF%20THE%20COMMITTEE%20ON%20ENERGY%202007.pdf
Parliament of Zambia 2007 Parliamentary Report of the Committee on Energy, Environment, and Tourism for the First Session of the Tenth National Assembly Appointed on 8 November 2006 http://www.parliament.gov.zm/sites/default/files/documents/committee_reports/REPORT%20OF%20THE%20COMMITTEE%20ON%20ENERGY%202007.pdf accessed 5 March 2018

Udoh 2014 http://www.minesandcommunities.org/article.php?a=12557
Udoh N 2014 Zambia: High Court Grants Injunction against Lower Zambezi Mine http://www.minesandcommunities.org/article.php?a=12557 accessed 10 December 2014

World Bank 2016 http://www.worldbank.org/en/news/feature/2016/07/18/
how-can-zambia-benefit-more-from-mining
World Bank 2016 How Can Zambia Benefit More from Mining? http://www.worldbank.org/en/news/feature/2016/07/18/how-can-zambia-benefit-more-from-mining accessed 11 July 2018

ZDA 2014 http://www.zda.org.zm/?q=ja/download/file/fid/57
Zambia Development Agency 2014 Zambia Mining Sector Profile http://www.zda.org.zm/?q=ja/download/file/fid/57 accessed 13 December 2016
Views
  • Abstract 182
  • Pdf 112
  • xml 5
  • epub 2
Views and downloads are with effect from 11 January 2018
Published
2019-04-23
Section
Articles