Boyane John Gosebo Tshehla
Law Lecturer | Law Researcher| Novelist
Email: boyane.tshehla@nwu.ac.za | Website: www.JohnGosebo.com
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Constitutional Foundations of Environmental Law: From Global Norms to Local Judgments
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Notes by Boyane Tshehla
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1. International Treaties and Environmental Law
International environmental law begins with a network of multilateral treaties that provide universal principles. Notable examples include:
• The Stockholm Declaration (1972) – First global recognition of the human right to a healthy environment.
• The Rio Declaration (1992) – Introduced principles like sustainable development, the precautionary principle, and public participation.
• The Paris Agreement (2015) – Emphasizes climate action within a human rights and equity framework.
These treaties inform constitutional rights globally and influence the drafting and interpretation of national constitutions — including South Africa’s.
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2. The African Charter on Human and Peoples’ Rights (ACHPR)
The African Charter (1981) is one of the few regional human rights instruments to explicitly include environmental rights:
• Article 24: “All peoples shall have the right to a general satisfactory environment favourable to their development.”
This right has been interpreted robustly by the African Commission on Human and Peoples’ Rights — most notably in:
The SERAC Case (2001) – Social and Economic Rights Action Center & Another v Nigeria
• The Nigerian government failed to regulate oil companies that polluted the Niger Delta.
• The Commission found violations of rights to health, life, and the environment.
• Key point: Environmental degradation can amount to a human rights violation under African law.
The Ogiek Case (2017) – African Commission v Kenya
• The Kenyan government evicted the Ogiek people from the Mau Forest.
• The African Court found violations of the rights to land, culture, and environment.
• Key point: Environmental rights protect not just ecosystems but also cultural and customary ways of life.
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3. Constitutional Environmental Rights Across Africa
Several African countries have constitutional provisions explicitly recognising the right to a healthy environment:
• Namibia – Article 95(l) of the Constitution mandates environmental protection and sustainable use of natural resources.
• Lesotho – Section 36 of the Constitution provides for environmental protection as a principle of state policy.
• Mozambique – Article 90 of the 2004 Constitution states: “All citizens shall have the right to live in a balanced environment and the duty to defend it.”
• Kenya – Article 42 guarantees the right to a clean and healthy environment; Article 69 imposes duties on the state to protect biodiversity.
• Eswatini (Swaziland) – Section 210(2) of the Constitution enshrines principles for environmental protection and sustainable use.
• Zimbabwe – Section 73 of the 2013 Constitution gives everyone the right “to an environment that is not harmful to their health or well-being.”
These provisions reflect a continental shift towards environmental constitutionalism — linking development, equity, and ecological stewardship.
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4. Section 24 of the South African Constitution
South Africa’s Constitution (1996) enshrines environmental rights in Section 24:
"Everyone has the right —
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures..."
Key principles embedded here include:
• Human-centred environmental protection
• Intergenerational justice
• Legislative accountability (via NEMA and other statutes)
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5. Landmark South African Cases Interpreting Section 24
Fuel Retailers Association v Director-General Environmental Affairs (2007)
• The Constitutional Court held that environmental protection must be considered independently in decision-making.
• Development cannot override environmental interests without proper assessment.
• Key impact: Section 24 creates substantive duties, not just procedural ones.
Earthlife Africa Johannesburg v Minister of Environmental Affairs (2017)
• Challenged the approval of a coal-fired power station without climate change assessment.
• Court held that climate impacts must be considered under NEMA.
• Key impact: Introduced climate change into South African environmental jurisprudence.
Gongqose and Others v Minister of Agriculture, Forestry and Fisheries (2018)
• Fishers were convicted for harvesting marine resources in a protected area without permits.
• The Supreme Court of Appeal overturned the convictions, holding that their customary rights to fish were protected under the Constitution.
• Key impact: Customary law can coexist with environmental law, and Section 24 must be interpreted in harmony with customary rights.
Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others (2022)
• Challenged the approval granted to Shell for seismic surveys off the Eastern Cape coast.
• The High Court found that the decision violated environmental rights, traditional community consultation duties, and cultural rights under the Constitution.
• Key impact: Affirmed the interconnectedness of environmental, cultural, and participatory rights under Section 24.
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6. Synthesis: A Constitutional Model of Environmental Law
South Africa’s environmental law rests on a constitutional foundation that integrates:
• Global norms (through treaties)
• Regional obligations (ACHPR)
• Domestic guarantees (Section 24 of the Constitution)
• Judicial enforcement (key judgments)
• Customary recognition (as shown in Gongqose)
• African peer practice (as seen in Namibia, Kenya, Mozambique, etc.)
This model empowers courts, communities, and citizens to demand accountability, protection, and sustainable development — all grounded in law.