In a world where the weight of climate change impacts falls disproportionately on the shoulders of Africa, a continent contributing less than 10% of global greenhouse gas emissions, the urgency is palpable. The haunting statistics from the Emergency Event Database paint a stark reality: 110 million lives affected by weather, climate and water related hazards in 2022, an economic toll surpassing $8.5 billion, and 5000 lives lost – 48% in the suffocating grasp of drought, 43% swallowed by the merciless floods. It’s a call to action, a need for change that transcends borders.
Even more disheartening is the fact that more than 90% of fossils fuels extracted from Africa are not consumed in Africa but in Europe. Other climate change effects include increase in temperature leading to heat stress and proliferation of vector borne diseases, variable rainfall, tropical cyclones, desertification, land degradation, more frequent extreme weather events, affected freshwater resources and loss of biodiversity, malnutrition and trauma.
In 2022 UN General Assembly declared that access to a clean, healthy and sustainable environment is a universal human right. Therefore climate change is an international justice issue.
Climate justice entails putting equity and human rights at the core of decision making and actions on climate change. Countries, industries, businesses/people that have become wealthy from emitting large amounts of greenhouse gases have a responsibility to help those affected by it especially in vulnerable communities. Unfortunately, there has been a clear disconnect that exists between those responsible for climate change problems and those bearing its worse impacts and the unwillingness of the former to take necessary remedial action to the extent required.
Beyond the loss and damage fund, an aspect of climate justice rapidly gaining ground worldwide is climate litigation. Between 2015 and mid-2020, 40 cases were brought before national courts and international bodies in 22 countries.
The climate litigation serves the purpose of putting pressure on governments to increase efforts to mitigate climate change, enforce climate obligations and targets, protect human rights when governments undertake actions on climate change, establish responsibility of corporations and serves as a deterrence to government and corporations intending to indulge in acts detrimental to environmental sustainability.
Climate litigation has not been without challenges more so in Africa. Currently, out of about 2000 climate change related cases instituted across the world, only 13 has been from Africa.
One major challenge is establishing a causal link between a government’s action/inaction and the effect on human rights with the complex and global nature of climate change. An individual cannot claim to be the only one affected by climate change so issues of locus standi will arise more so where the impact is claimed on behalf of future generations.
This hurdle can however be surmounted through rights based litigation, framing the case as the State’s obligation to protect against infringement of human rights by climate change. For example in the case of Budayeva and others v Russia which concerned mudslides in Caucasus that killed 8 people, the government did not cause the mudslide but the court held that it nevertheless had a responsibility to take appropriate steps to safeguard the lives of those within jurisdiction.
Advances in climate attribution in form of robust evidence to establish a strong causal connection between historic and future greenhouse gases that has led to increase in surface temperature and the likelihood of severe weather as a result have equally been invaluable to litigants in establishing causality in climate change cases.
Another challenge with climate litigation is Justiciability. A situation where the court is willing to find a violation of international human rights law but it is still reluctant to order remedies or award damages in response due to fear of exceeding its mandate. The solution is to frame arguments in relation to compatibility to a specific legislation with rights rather than challenging government policy as a whole.
This solution is particularly instructive and applicable in Nigeria where Chapter 2 of the 1999 Constitution of the Federal Republic of Nigeria containing provisions of social economic rights of the citizens and the attendant responsibility of the government is non justiciable. The Climate Change Act of 2021 in this case comes to the rescue providing sound legal foundation for potential climate change litigation in Nigeria.
The Act imposed obligations on public and private entities to promote low carbon economy and sustainable livelihood as well as the responsibility of the Council and its Secretariat to partner with relevant stakeholders especially CSOs. The Act further makes it actionable to bring a claim for the potential failure of the Council to regulate offenses and penalties for non-compliance.
Recently, in Center for Oil Pollution Watch v NNPC, the Supreme Court (SC) expanded the frontiers of locus standi to environmental litigation by holding that every person including NGOs who bona fide seek the due performance of statutory functions or enforcement of statutory provisions or public laws especially laws designed to protect human lives, public health and environment should be regarded as having standing to request adjudication on issues of public nuisance that are injurious to human lives, public health and environment.
It is noteworthy that Nigeria’s 2021 Climate Change Act is the first stand-alone comprehensive climate change legislation in West Africa and among the few both regionally and globally. Though its implementation since promulgation leaves more to be desired, the legislation itself is a step in the right direction.
The final challenge of climate litigation sought to be highlighted for the purpose of this discourse is funding for rights based climate litigation. This can be resolved through partnerships. With increased advocacies and public awareness on climate justice, partnerships can be forged with individuals, groups, CSOs, NGOs and international organizations to institute climate actions.
Rights based climate litigation is here to stay as governments are coming under increasing pressure to do more in this area and as courts and human rights bodies expand on and entrench the relationship between rights and climate change through case law.
In October 2021, the UN Human Rights Council voted 42-1 in favor of a resolution to recognize the right to a safe, clean, healthy and sustainable environment as a human right. While not legally binding, this political statement is likely to strengthen the basis of rights based climate litigation before national courts especially in countries where such a right is not explicitly recognized by domestic law.
The foundational driver for rights based litigation is public interest law practice, research and judicial activism. Another driver is the national commitments under the Paris Agreement. 54 countries in Africa have ratified the Paris Agreement and as next steps will implement the Nationally Determined Contributions (NDCs) and National Adaptation Plans (NAPs) that they submitted as part of their commitments to reduce emissions and adapt to climate change. Other right based litigation drivers include NGO Activism, higher levels of physical and transition risks, greater levels of public awareness, higher levels of funding for climate litigation and the implications of COVID- 19 on economic recovery and climate related actions.
In South Africa there has been an interesting development in climate litigation, from environment focused investor advocacy groups such as Just Share and RAITH. These groups have driven a boardroom campaign to force debates on shareholder resolutions by filing climate risk related shareholder resolutions within two national banks. Part of what these resolutions have called for include an assessment of the bank’s exposure to climate related risks in its lending, investing and other financial intermediary activities and the adoption and public disclosure of policies on lending to fossil fuel industries. Activism by the investor advocacy groups was partially behind the withdrawal of funding by institutional lenders for the Thabametsi and Khanyisa coal fired power plants.
These organizations have also increased public attention towards risks and liabilities for directors relating to climate change within private corporations and have driven an agenda on the fiduciary legal responsibilities of pension fund trustees particularly as they relate to fossil fuel investment.
Shareholder litigation on climate change is still nouvelle but with prospects. Shareholder activism already has likelihood of prominence particularly for companies operating within but not necessarily with headquarters in Sub Saharan Africa.
Whether rights based or shareholder litigation for climate justice, there is need for it to be run in conjunction with other strategies such as policy advocacy, public campaigns and as part of the numerous tools being used to highlight the human right risks of climate change including legal institutions, alliances and mass mobilization. They also have to be run strategically and sensitively to have impact as there could be the risk that a case could polarize opinions and provoke a backlash.
In conclusion, climate justice through litigation though a welcome development is just a way of applying pressure on government to do their minimal share to ameliorate negative impacts of climate change. It remains reactive, undertaken on a case by case basis and should not be a substitute to more proactive tools like legislation and policy action from the legislative and executive branches of government.
Ruth Soronnadi is a Lawyer, Chartered Mediator, YALI Fellow and Administrator. She has an LLM with Distinction in International Law and Human Rights. She is interested in public speaking & advocacy, policy making and analysis, strategic planning, human resource management for the government and international organizations.