Tracing the Trend
Emerging Climate Litigation in Kenya and South Africa
Legal and social science scholars observe a growing trend in climate litigation over the last three decades with large regional discrepancies. Of roughly 1,900 climate cases concluded or pending by the end of 2021, 1,400 were filed in the U.S. and the rest predominantly in Australia, Canada, New Zealand, and Europe. According to the Climate Change Litigation Databases of the Columbia Law School Sabin Center for Climate Law there have been fourteen climate cases filed in Africa to date. Our contribution focuses on national cases brought in South Africa (nine) and in Kenya (one).
First, this post gives an overview of climate litigation in both countries, tracing litigation objects, plaintiffs, defendants, key legal bases and arguments. It further explores whether there are signs of an emerging trend in climate litigation in both countries. In our analysise climate litigation encompasses cases that have been brought with the intention of supporting climate mitigation (efforts to reduce GHG emissions) or adaptation (efforts to adapt to the effects of climate change). In order to come to a view on the dynamics of climate litigation, we broadly follow the criteria of the Social Plausibility Assessment Framework established in the Hamburg Climate Futures Outlook 2021. The Social Plausibility Assessment Framework is being developed as part of the German Cluster of Excellence Climate, Climatic Change and Society (CLICCS) to assess the dynamics of social drivers towards deep decarbonization, their enabling and constraining conditions, and emerging global opportunity structures. Climate litigation is considered to be one of those social drivers. In this regard, this post scrutinizes climate litigation as a social process embedded in legal and societal conditions and identifies key supportive conditions in social movements and media coverage.
Legal Arguments and Enabling Conditions
The majority of the cases, the Kenyan case as well as five out of nine cases in South Africa, were brought against fossil fuel-based power plants. A further four cases in South Africa target two oil exploration projects, an urban expansion project threatening safe water supply, and the right of a city to purchase renewable electricity without the consent of the national regulatory entity. Thus, nine of ten cases have a climate mitigation, and one has a climate adaptation focus. It is important to note that adaptation challenges play a role in the lines of argument of all cases. Four of the South African cases have been filed since 2021 and thus very recently. Out of the overall ten cases, four have been decided, three in favour of the plaintiffs (two against coal-fired power plants and the one against the urban expansion) and one in favour of the defendant (relating to the right of a city to buy renewable electricity) with six cases still pending. Cases targeting coal, gas power plants and oil exploration projects were initiated by local communities and environmental justice groups. A youth led constitutional challenge has also been presented for litigation. Arguably, all cases were brought in the public interest. The defendants in all ten cases were ministries of the national government or national regulatory entities and – in the Kenyan case – even a private power generation corporation. The most recent case filed in November 2021, is the first South African case brought against state entities and a ‘Carbon Major’.
Regarding the legal bases, in nine of the ten cases regulations on environmental impact assessments (EIA) played a key role. The importance of EIAs is underscored, as in both countries the law provides for the integration of climate risk and vulnerability assessments into all forms of assessment. Additionally, the cases in both countries were mainly argued and grounded on their respective Constitutions, Environmental Management Acts and related EIA Regulations. In South Africa, sector specific laws such as the Electricity Regulations Act and in Kenya the Climate Change Act were invoked. All cases targeting the extraction or burning of fossil fuels mentioned the Paris Agreement 2015 and related Nationally Determined Contributions (NDCs) in their lines of argument. With regard to constitutional law, the right to a healthy environment, the right to procure clean energy, and the right to procedurally fair administrative action were invoked in the cases. Environmental and climate change impact assessments were deemed inadequate in not (sufficiently) encompassing the (life cycle) effects of projects on, inter alia, ground water, air quality, food security, climate change, sensitive coastal ecosystems and heritage. Furthermore, the public trust doctrine, a common law doctrine which imposes on a State a duty of care for its citizens, played an important role in most of the cases. In summary, we can see an emerging trend of in climate litigation, with many cases targeting fossil-fuel energy infrastructure in South Africa and Kenya. However, since some of the cases are still pending it is too early for a statement on specific effects of climate litigation.
Among the key legal enabling conditions for climate litigation in both jurisdictions are supportive constitutional rights and standing rules. In the Constitutions of Kenya (2010) and South Africa (1996), the right to a clean and healthy environment is enshrined in the Bill of Rights, encoding the protection of an individual’s right in the present and future to enjoy a clean and healthy environment. This right may be regarded as a gateway right, with its breach or realisation invoking other constitutional rights. The Kenyan Climate Change Act 2016 is the first dedicated framework on climate change law on the continent, reiterating the enforcement of rights relating to climate change when an individual has acted in a manner that is likely to adversely affect efforts towards mitigation and adaptation. South Africa took the continental lead by imposing a domestic carbon price in the form of a complex legal taxation regime. The carbon tax aims at reducing emissions in a cost-effective manner. The South African Climate Change Bill, which is in the process of being passed, is likely to become a key legal basis for future climate litigation for several reasons. Firstly, the overall analysis of current trends in climate litigation shows that in the last year climate legislation and its effectiveness have been addressed in a growing number of cases. Secondly, the Climate Change Bill will allow potential future plaintiffs to base their legal arguments directly on climate legislation without (only) relying on EIA regulations. Finally, the Kenyan case is an example of how the country’s Climate Change Act became an important pillar in the argument.
Both countries have favourable standing rules for public interest litigation. In Kenya, applicants do not need to demonstrate that they have incurred loss or suffered damage when seeking remedy and rectification for harms experienced and anticipated from climate change. In South Africa, the provision on locus standi is broadened to persons seeking vindication in the public interest, including in the interest of protecting the environment and the climate. With regard to the merits, legislation on environmental impact assessments in both countries was interpreted to encompass climate change impacts and was crucial for all but one of the ten climate cases. Furthermore, the Environmental Management Acts of both countries were instrumental in almost all climate cases. It is also important to note that the 1981 African Charter on Human and Peoples’ Rights and the Ogoni landmark decision of the African Commission on Human and Peoples’ Rights pioneered the recognition of a justiciable right to a healthy environment, making African human rights jurisprudence a persuasive authority on which other domestic and international tribunals may rely in their interpretation of human and constitutional rights. Another enabling condition for potential future litigation against private companies is that legislation in both countries provides for the ‘piercing of the corporate veil’. This means that, where certain environmental offences have been committed, managers and directors of companies may be convicted of the offences where the company has been convicted. While the 1998 South African National Environmental Management Act, the 1999 Kenyan Environmental Management and Co-ordination Act, and the Companies Act, do not impose strict liability, they help to prevent guilty parties avoiding prosecution by hiding behind the corporations which they control. Furthermore, the use of criminal law in enforcing environmental law in both countries has been recognised, imposing liability on parties who are conducting environmental and climate change related harm.
Turning from legal to societal enabling conditions for the climate cases in both jurisdictions, it becomes apparent that grass-roots initiatives and social movements played a crucial role. Local communities in Lamu, Kenya, and Mpumalanga, South Africa, brought cases that have served to uphold not only substantive constitutional but also procedural rights. Members of the local communities affected were both vocal and visible throughout the campaigns and supported by coalitions bringing in further legal and financial resources. While there are no clear signs for emerging strategic litigation networks in both jurisdictions, the embeddedness of plaintiffs in the climate justice movement shows growing network capacities and infrastructural support as important enabling conditions for future climate litigation.
Finally, plaintiffs designed successful media campaigns under the banners Impilo Ngaphandle Kwamalahle, deCOALonize.org, and #CancelCoal. Regular updates have been published online and on social media and street demonstrations have been organized in both countries even before the cases went to court. Public pressure was key to the success of the campaigns. In Kenya, social media has been used as a tool to create the opportunity and space for citizens to protest and thus influence new narratives. Raising the awareness at a national level was important for activists as it prevented the construction of the coal plant from being relocated to a different part of the country. All in all, this brief review of key legal and societal enabling conditions for climate litigation shows an environment favourable for future climate cases.
Facing the Future
John Cantius Mubangizi, author and judge, encouraged the various African countries, especially since they are in transitional stages of development, to learn from one another. Across the continent from Cairo to Namibia, Lekki to Nairobi, to mention a few, Africa is anticipating growth of infrastructure with its demand for energy growing with its young mushrooming population. Indeed, it is important to consider the figures and the analysis of the case law emerging from Africa, as it furthers knowledge democracy. As Kivutha Kibwana postulated, “Africa could solve her legal problems better if the experiences of all her countries are used in fashioning common legal solutions.” Sharing of knowledge is a powerful tool which can be useful in strengthening social action against climate change in Africa as whole. It also prepares the continent to deal with incoming climatic impacts which will increase as Africa develops. These cases are representative of the actions that can and will be taken by individual communities in Africa holding States responsible for their duty of care to safeguard the environment.
The two coal cases already adjudicated could serve as precedents for the pending cases and references for other climate cases across the globe stopping fossil fuel investment and infrastructure. Constitutional rights and legislative acts like the legal bases used in arguing the merits of the South African and Kenyan cases can be found in many other African jurisdictions. The progressive nature of standing rules as well as the growing climate justice movement are further decisive enabling conditions for the emerging climate litigation in South Africa and Kenya and are likely to play an important role for climate litigation in other courts. In the coming years, progress in attribution science could help arguing causation and improve the prospects of liability and compensation claims against private companies in African and other climate litigation cases.