Serengeti justice free download

I. Introduction

In June 2014, the First Instance Division of the East African Court of Justice (EACJ) issued a permanent injunction barring the government of Tanzania from building a road across the Serengeti National Park, a United Nations Educational, Scientific and Cultural Organization (UNESCO) world heritage site.1 The Appellate Division of the EACJ largely upheld that decision in July 2015.2 This decision (hereinafter the Serengeti case or Serengeti) joined a string of recent decisions issued by Africa’s fledgling international courts that have inaugurated a new era of judicial environmentalism. Judicial environmentalism is characterized by expansive interpretations of environmental provisions in regional economic integration and regional human rights treaties. My argument is that these new orders to protect the environment inaugurate a new era of enhanced environmental protection through Africa’s international courts. They signal the embryonic stages of using courts to enforce international environmental legal commitments in Africa. This may have lessons for other parts of the world. This paper, as far as I can tell, is the first one that systematically discusses how the decisions of Africa’s international courts are pushing the boundaries of judicial enforcement of international environmental law in response to three major developments: First, the decisions of African governments to pursue mega-development projects¾such as the Serengeti superhighway, large extractive industry operations, or hydro-electric dams¾without regard to the environment or local populations. Second, resistance through judicial processes against mega-development projects through alliances of those directly affected by these mega-development projects at the grassroots level together with global environmental movements. Third, how Africa’s international courts, spurred by organized groups bringing these cases to them, have repurposed these trade courts to begin enforcing environmental norms included in regional trade and human rights agreements.

These new environmental cases simultaneously expose the possibilities and limits of judicial environmentalism—the possibilities because they have issued unprecedented decisions protective of the environment when government conduct violates treaty-protected environmental rights, and the limits because the final outcomes of these decisions are at this point unlikely to severely dent the commitment of African governments to pursue mega-development projects. What is surprising is that these international courts have not shied away from announcing extremely broad and significant remedies often carefully hedged with limitations to protect the courts from political backlash against their expansive judicial environmentalism.

This Article proceeds as follows: Part II reviews the establishment of Africa’s regional trade integration system and discusses the multiplicity of their objectives, including those relating to environmental protection. I show that while these integration systems were intended to be primarily about opening up regional trade, the courts established within them have been re-deployed, first to become human rights courts and more recently to protect the environment. Part III discusses the Serengeti case which best exemplifies Africa’s judicial environmentalism. It begins by discussing how local and international alliances mobilized to save the Serengeti, a UNESCO world heritage site, through judicial environmentalism in the EACJ. It discusses how the government of Tanzania responded to the litigation. Part IV discusses two other important decisions of Africa’s international courts—Socio-economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria3 from the Economic Community of West African States (ECOWAS) Court of Justice as well as Social and Economic Rights Action Center (SERAC) & Center for Economic and Social Reform (CESR) v. Nigeria4 before the African Commission on Human and Peoples’ Rights—to illustrate that there is an emerging judicial environmentalism movement beyond the Serengeti case in Africa.

Part V discusses some particularly important national judicial decisions from Kenya and Zambia that have international dimensions in order to show the continuous nature of the international environmental judicialism of Africa’s international courts with national courts as well as to complete the picture on Africa’s new environmental judicialism and its limits.

Part VI discusses judicial environmentalism’s features and theoretical implications. Here, I discuss how judicial environmentalism represents yet another redeployment of African international courts following their earlier redeployment from trade to human rights cases. This part also critically assesses the prospects of this environmental judicialism for Africa’s fledgling international courts and for the enforcement of international environmental law.

II. The Rise of Africa’s International Courts and Their Re-Repurposed Mandates

Africa has eight functioning international courts.5 Every African country except two, Somalia and São Tóme and Príncipe, fall under the jurisdiction of one of these courts.6 These courts are historically recent, especially relative to international courts in other regions. They all became operational in the first decade of the twenty-first century7 Each of these courts was established as a regional trade court to oversee the implementation of regional trade commitments.8 These courts, incorporated in African regional integration treaties, mimic the European Court of Justice in many respects.9 Another crucial design feature these courts have in common is that they allow suits to be initiated by non-state actors with very liberal access and admissibility rules.10

Although these courts were established as regional trade courts, three of them have primarily decided human rights cases—the East African Court of Justice the Southern African Development Community Tribunal (“SADC Tribunal”), and the West African Community Court of Justice (“ECOWAS Court”); the latter is the only one with an explicit jurisdictional mandate to decide human rights cases.11 By contrast, the EACJ and the SADC Tribunal have pursued a broad interpretive strategy to justify assuming jurisdiction over human rights by invoking human rights provisions contained in the preambles of treaties establishing regional trade communities.12 Thus, a major feature of these courts is the manner in which they have repurposed their original mandate over trade disputes to become bold adjudicators of human rights cases and disputes of a political nature. As I have explained elsewhere at length, the repurposing of their mandates is evidence that these courts are becoming enmeshed within regional movements that are aimed at advancing human rights at the national level and that are increasingly spreading at the regional and sub-regional level.13

The growth of jurisdiction over human rights in a sub-regional trade court in Africa is surprising, because national courts are subordinated to powerful executives.14 Judicial checks on expansive exercise of executive power are few and far between in African countries.15 Hence, the growth of sub-regional African courts that repeatedly issue rulings that governments do not like is unusual. It is in part the result of the growth of strong civil society groups deeply embedded in the regional integration frameworks, particularly in East and West Africa, as well as the slow but sure emergence of a cadre of judges with a normative commitment to ideals such as the rule of law, human rights, and good governance. The human rights jurisprudence of these sub-regional courts marks a clear departure from the judicial subservience to authoritarian governance and judicial acquiescence to powerful forces that arguably still animates the Common Market for Eastern and Southern Africa Court of Justice.16 Thus, sub-regional courts are responsive to the failure of domestic mechanisms to redress human rights violations and the threats posed to the rule of law in the absence of any checks at the national level.17

Judicial environmentalism represents a second repurposing of Africa’s international courts. They were initially repurposed from trade to human rights courts and now they are being repurposed to serve the additional function of adjudicating environmental cases. Decisions such as Serengeti v. Tanzania, SERAP v. Nigeria, and SERAC v. Nigeria show that environmental interest groups have learned from human rights lawyers who successfully transformed these courts from their original mission of adjudicating trade to deciding human rights cases. Thus, as I demonstrate in this paper, domestic and international environmental interest groups worked together on a litigation and publicity campaign that has mimicked that of human rights activists in persuading these courts to decide environmental cases.

Africa’s international courts are not the traditional international style courts in which only states can sue states and where jurisdiction is consensual. These new courts have compulsory jurisdiction to decide whether particular law or conduct is consistent with the applicable treaty, and they allow private litigants to initiate litigation.18 Unlike with traditional international courts that are dependent on the consent of states prior to adjudication, new style courts in Africa allow private actors to bring cases against the states without requiring the state’s consent.19 Private litigants have been more willing than states to file cases which have kept these courts busy. This experience accords with that of courts in other regions of the world where direct private access is permitted.20

In East Africa, lawyers prevailed in persuading the EACJ to read preambular provisions referring to human rights of the Treaty for the Establishment of the East African Community in a manner that conferred the court jurisdiction to use these provisions to establish a cause of action for human rights violations.21 This was a significant victory not only because it opened the door for a string of human rights cases but also because the EACJ’s parent treaty explicitly provided it did not have jurisdiction over human rights.22 This is also a paradigm-upsetting move for a court established to oversee regional trade integration rather than to oversee compliance with human rights norms. The EACJ and the SADC Tribunal have turned a classic paradigm of international trade courts upside down.23 International trade courts like the European Court of Justice and the WTO’s Dispute Settlement Body do not decide cases brought by citizens alleging violations of civil and political liberties such as arbitrary arrests, incommunicado detentions, torture, and rendition of terrorist suspects.24 These types of cases are entertained in courts established with a supervisory mandate to oversee the implementation of a human rights treaty, such as the European Court of Human Rights’ mandate over rights under the European Convention of Human Rights.25

By contrast, international trade courts, such as the Panels and the Appellate Body of the WTO, can only entertain cases relating to trade, not those raising questions such as whether or not there are violations of regional human rights, international human rights or other non-WTO treaties.26  Although the European Court of Justice often weaves references to the European Convention on Human Rights into its decisions, its jurisdiction in contentious cases was originally designed to oversee economic integration commitments.27 As such, its jurisdiction was, in its early years, understood to only extend to human rights insofar as these rights related to the market freedoms (such as the right of movement and the right of establishment), rather than the rights established under the European Convention on Human Rights.28  Even then, what is truly remarkable about the majority of cases that have come before the EACJ, the Economic Community of West Africa Court of Justice (“ECCJ”), and the SADC Tribunal is that they have not in any way been framed as constituting violations of any of the market freedoms of their regional treaties.29 Instead, they have been primarily based on enforcing human rights provisions in sub-regional, regional, and international law.30

 These cases have defied the traditional paradigm of international trade courts of deciding trade cases and leaving human rights cases to human rights courts. In international law, this paradigm-upsetting move of African International Trade Courts accepting human rights cases reflects a breakdown of a pervasive distinction between courts that have exclusive economic mandates, on the one hand, and courts that have exclusive mandates over human rights issues on the other. The framers of the post-World War II era consciously distinguished international institutions falling on the economic side (such as the World Bank, International Monetary Fund and the then General Agreement on Tariffs and Trade), from those falling on the political side (primarily the U.N.).31

This design distinguishing political from economic institutions was selected because of the belief that it was necessary to insulate economic institutions from the interference of political matters.32 Hence, the World Bank and IMF were thought of as institutions charged with non-political, technical mandates over economic matters.33 By contrast, political affairs such as those relating to peace and security as well as human rights were left to the United Nations.34 This distinction, with the resulting separation of international courts between those dealing with trade and those dealing with human rights, is reflected in Europe, the Americas, and even in Africa.35

The fact that African international courts share a unique resemblance in combining simultaneous decision-making authority over trade and human rights cases calls for an explanation. Why have African international trade courts decided to effectively turn away from the paradigm of courts exclusively exercising a trade mandate, on the one hand, and courts exclusively exercising a human rights mandate on the other? In other words, why have African courts become hybrid courts? Africa’s international courts could very well have justified resisting expansive interpretations on the basis of lack of explicit jurisdiction or by invoking technicalities such as admissibility—as African national judiciaries often do when they do not want to anger governments.36 Why did they fail to travel the well-trodden path followed by national judiciaries?

Ruti Teitel offers a very plausible suggestion. She asks a question pertinent to this discussion and then answers it:

How does judicial discourse shift power by empowering non-state actors, who in turn, by addressing themselves in various ways to international courts and tribunals and being addressed by them, become agents of legitimacy? International courts and tribunals are well situated to supply a rights-based discourse at least partly detached or autonomous from national political cultures and constitutionalisms – universalizable, secular, transnational – and with the authority of high human values.37

In other words, these courts offer a set of rules that are not dependent on national legal orders to be invoked and relied upon by private actors. If Africa’s international courts depended on national legal orders for cases to be brought, it is likely they would have few to no cases.38

Notably, not all of Africa’s international courts have repurposed their mandates to include deciding human rights or environmental cases as those in East, West and Southern Africa have. For example, the Common Market for Eastern and Southern African (COMESA) Court of Justice has largely remained an industrial tribunal.39 Its case law has primarily arisen from employees of the regional integration organization within which the court is nestled.40 This court has not, unlike the other African sub-regional courts, decided human rights cases. A large part of the explanation for its unique trajectory in redeploying to become an industrial as opposed to a trade integration court has to do with the lack of civil society interlocutors to bring cases to the court, to defend the court, and to lobby for court reform.41 This, together with its restrictive interpretive mandate and location—first in Lusaka, Zambia and currently in Khartoum, Sudan—accounts for the court’s inability to build a broader jurisdictional reach.42 In addition, even though it shares similarities in its individual access and jurisdictional rules to other sub-regional courts, it is also limited by an exhaustion of domestic remedies rule, which together with its restrictive interpretive strategy has effectively left it to become an industrial tribunal.43

III. The Serengeti Case and How it Illustrates Environmental Repurposing of Africa’s International Courts

In June 2014, the first Instance Division of the EACJ delivered an audacious and unprecedented decision. Audacious because as a regional court it was exercising authority to essentially reverse the decision of a sovereign government to build a road within its own borders, and unprecedented because it is the first decision, as far as I can tell, in which an international court invoked international environmental rules to prohibit a government from undertaking a project because to do so would be inconsistent with those rules. To fully appreciate the significance of that decision, this part of the essay will begin by discussing how Tanzania transformed from a socialist country that valued its environment and eschewed big development projects to a market-oriented economy in which big-development projects that have or are likely to have large adverse impacts on the environment are now the norm. It is this turn from a commitment to environmental conservation towards neo-liberal market reforms that brought together local communities opposed to the road across the Serengeti National Park with international environmental groups. One of their strategies became using the EACJ in their opposition to the road project. Thereafter the essay discusses the various phases of the Serengeti case in the EACJ.

A. Tanzania: From Environmental Conservationism to Big Development Projects

The Serengeti National Park, located in Tanzania, is a one and one-half million-hectare park designated by UNESCO as a world heritage site because of its pristine natural habitats, wildlife populations, rich biodiversity, and status as a critical ecosystem in East Africa.44