The Environmental Rights Agreement (ERA) Coalition, to which ISHR is a member, organised, on 21 October 2023, a side event on the margins of the 77th Ordinary Session of the African Commission on Human and Peoples’ Rights (African Commission).
Participants shared information on the movement for an environmental rights legal framework for Africa, lessons learned and generated wider support for the ERA movement. Joseph Burke, Head of Universal Rights Group Africa noted some progress in the protection of the environment globally such as the African Leaders Nairobi Declaration on Climate Change and Call to Action, Paris Agreement and the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (ESCAZU Agreement). However, environmental rights defenders continue to face significant barriers to the conduct of their activities. According to Global Witness, one environmental defender was killed every two days in 2022 while the rest were subjected to violence, harassment and criminalisation. In its statement before the African Commission, ISHR reiterated this worrisome trend on the African continent.
Rights of Indigenous communities not recognised
Two panellists reviewed national trends in Kenya and Tanzania on the protection of environmental rights and public participation. In Kenya, Emily Kinama, Research and Litigation Associate at Katiba Institute stated that there do not exist laws which cater for environmental rights in Kenya. Civil society organisations have used public interest litigation to challenge laws that criminalise environmental and land rights defenders but the impact of these actions has, at times, been marginal because of strategic lawsuits against public participation. ‘Indigenous peoples’ rights are not recognised despite the African Court on Human and Peoples’ Rights’ judgment in the Ogiek case reiterating the obligations of Kenya to promote and protect their rights. This judgement has not been implemented by Kenya, six years after it was handed down’, said Kinama. She concluded by stating that ‘Kenya should continue to recognise their rights and pass laws and processes following the historical injustice stage and ensure the participation of Indigenous population in the protection of the environment given that Indigenous peoples have been protecting it since time immemorial’.
The relevance of inclusive participation
In her presentation, Miriam Tikoine, from the Maasai Women Development Organization, highlighted the necessity to involve the Maasai, and other pastoral communities in environmental and climate change debates, and to raise their awareness on environmental matters for them to understand the importance of protecting the environment.
Litigating environmental rights
The African Commision’s Special Rapporteur on Human Rights Defenders and Focal Point on Reprisals, Commissioner Remy Lumbu, called on States to strengthen human and environmental rights education, transparency and accountability in extractive industries to prevent leonine contracts which only benefit powerful businesses and sacrifice the interests and rights of present and future generations. Environmental rights defenders raise their voices against such contracts and stand against State and business’ practices which endanger the planet. Commissioner Lumbu said that this role played by environmental defenders has been recognised by the African Commission which has established this mechanism to remind States of their obligations, send urgent appeal letters or publish press releases when environmental defenders are in danger. These efforts must be honed by increased litigation activism, before national and African human rights bodies, on the part of NGOs.
The need for an environmental rights instrument
The Coalition called the Special Rapporteur, and the African Commission as a whole, to champion a process geared towards the development and the adoption of an environmental rights instrument.
Positively, the Special Rapporteur promised to support a proposed resolution to be adopted by the African Commission to launch the process of adopting an environmental rights instrument.