Brian Mazetese. (M198069) ENVIRONMENTAL Law Assignment

Great Zimbabwe University
HERBERT CHITEPO LAW SCHOOL

BACHELOR OF LAWS (HONOURS) DEGREE
NAME : BRIAN MAZETESE
REG NUMBER : M198069
MODULE TITLE : ENVIRONMENTAL LAW & POLICY
MODULE CODE : LLB 612
LECTURER : Mrs F. NDLOVU
YEAR : 2022 PART 3, SEMSTER 2.
PROGRAMME : BACHELOR OF LAWS DEGREE (LLB)
ASSIGNMENT : One [1].
QUESTION :
CRITICALLY DISCUSS THE EXTENT TO WHICH THE INCLUSION OF

ENVIRONMENTAL RIGHTS IN THE CONSTITUTION OF ZIMBABWE HAS
ENHANCED ENVIRONMENTAL PROTECTION IN THE COUNTRY
DUE DATE : 17 June 2022
:
The Zimbabwean Constitution of 2013 now includes environmental rights in section
73. It is important to note that this right was absent in the constitution before 2013.
Environmental rights were only enshrined in other Acts such as the EMA Act. The
inclusion of environmental rights in the constitution is a major development in the
history of environmental governance and natural resources management in the
country1. This writing seeks to show the importance of the inclusion of environmental
right in the protection of environment.This paper shall include a brief history of
environmental law so that we truly appreciate the milestone which the constitution
has achieved into making environmental concerns a constitutionally guaranteed
right.
Firstly, there is need to define environment as well as environmental rights.

According to The Environment Management Act as (a) the natural and man-made
resources, soil, minerals and living organisms whether indigenous or exotic and the
interaction between them;(b) ecosystems, habitats, spatial surroundings or other
constituent parts whether natural or modiﬁed or constructed by people and
communities, including urbanised areas, physical resources, both biotic and abiotic,
occurring in the lithosphere and atmosphere, water agricultural areas, rural
landscapes, and places of cultural signiﬁcance; (c) the economic, social, cultural or
aesthetic conditions and qualities that contribute to the value of the matters set out
in paragraphs (a) and (b); 2 The English Environment Protection Act defines
environment as including water, air, soil, flora and fauna. 3 The 1972 Stockholm
Declaration goes on to say that representative samples of natural ecosystems are
included in the definition. 4 The term environment could be said to cover all those
elements which in their complex inter-relationships form the framework, setting and
living conditions for mankind, by their very existence or by virtue of their impact. 5
Environmental rights relates to the right we have to the environment. 6 Section 73

now enshrines environmental rights in Zimbabwe. This right is interpreted to have a
two-fold purpose. The first part guarantees a healthy environment to every person.
1
Chirisa and Muzenda : Southern Peace Review Journal , 2013
2
Ema section 2
3
The English Environment Protection Act 1990, Section 1(2).
4
See Principle 2 in the Declaration of the UN Conference on Human Environment, Stockholm 1972, published
in Molitor (ed), International Environmental Law, Primary Materials, 1991, p 81.
5
EEC OJ C 115, May 1976, p 2.
6
https://www.polity.org.za/article/environmental-right-in-terms-of-the-constitution-2018-02-14
The second part mandates the State to ensure compliance with the first part
mentioned above.
BACKGROUND OF ENVIRONMENTAL LAW IN ZIMBABWE
The history of environmental laws in Zimbabwe can be traced back to the colonial
era. It must be noted that during this time environmental rights were not valued as
the settlers wanted maximum exploitation of the Zimbabwean resources. Before
colonization the native Zimbabweans had a system to ensure the protection of the
environment. According to Katerere, there were mechanisms to ensure sound
exploitation of mineral resources as checks and balances were in places to guard
against over exploitation. 7 Management of natural resources was centrally vested in
the chiefs and village heads. Through customary beliefs, concepts of sacred forest
and totems regulated the consumption of wildlife products. Thus, the utilisation of
environmental resources was achieved in a sustainable way.
During the colonial era, the colonial government enacted a number of laws that were
dealing with the environment. Such laws include, water Act, Forest Act, Parks and
Wildlife Act among others. All these pieces of legislation had one goal which was
protection of the environment. These laws were not popular with natives who felt
that, they were instruments of disenfranchising them of their natural resources. This
was mainly due to the fact that this system of laws was foreign to them.
The Lancaster Constitution which was promulgated after independence referred to

environmental protection but it didn’t emphasise. This was mainly due to the fact
that the Constitution was mainly focused on political rights. The Lancaster House
Constitution can however be interpreted to protect environmental rights. However
Environmental rights were not explicitly recognised is also important to note that
there was a statutory provision for environmental rights in the 1979 Constitution
through the provision of a comprehensive Declaration of rights in chapter 3 .It
extended that the Declaration incorporated a right to life in section 12 which could
be interpreted expansively as a right that included the protection of the environment
because the right to life meant living in a healthy environment. Therefore the right to
life could be extended to include environmental protection.
After independence in 1980, the post-colonial era witnessed remarkable measures

and reforms of environmental legislative framework towards the protection of the
7
Katerere M 2001.
environment however environmental rights were not yet recognised as a right.
Environmental needs were still not being regarded as part of rights 8. This was due to
the fact the law was mainly focused on political rights and to ensure that the black
Africans can also enjoy resources which they were once denied. Further the
fragmented pieces of legislation on environment were not repealed, thus there was
lack of coordination in the environment protection legal framework. It thus led to the
desire to consolidate these statutes into one effective statute which shall be
administered by a single ministry and the Environmental management Bill was
formulated. Later on in the environmental rights were explicitly recognized through
the Environmental Management Act. It must however be noted that this right was
not strictly enforceable. This point is supported by the case of the Zimbabwe
Homeless People Federation where the court ruled that any right that is not
contained in the declaration of rights is essentially hortatory in nature rather than
strictly justiciable and enforceable. 9 This proves the value of the inclusion of
Environmental rights in the Constitution’s Bill of Rights.
CONSTITUTIONAL ANALYSIS ON THE INCLUSION ON ENVIRONMENTAL

RIGHTS
The Stockholm conference influenced nations to adopt constitutional provisions

concerning the environment, this birthed environmental rights. Section 2 of the
Constitution states that the Constitution is the supreme law of the land, this is in line
with the principle Constitutional supremacy. 10 Thus, it is a great leap forward to have
environmental rights as part of the supreme law of the land which determine the
validity of other laws. All environmental laws in Zimbabwe now have to be in line
with section 73 otherwise those laws would be unconstitutional and invalid. This is of
huge importance in the protection of the environment.
The inclusion of environmental rights in the Constitution is also important as it gives

people locus standi. Section 85(1) of the Constitution states that access to court is
available to persons acting in their own interests, on behalf of another person, as a
group or class, in the public interest, and as an association acting in the interests of
its members, alleging that any fundamental right in the Declaration of Rights has
8
Mtisi 2004
9
Zimbabwe homeless people’s federeation v
10
Section 2 of the Constitution of Zimbabwe Amendment (No.20) 2013
been infringed or is likely to be infringed. 11 Environmental rights are included in the
Constitution, therefore everyone have got locus standi and can enforce this right in a
court of law.
In South Africa the issue of environmental rights was interpreted in the Fuel
Retailers case of 2002 (the South African Constitution also protects environmental
rights in its Section 2112). Ngcobo J provided a useful synopsis of the development
of the concept of sustainable development. 13 In interpreting section 24, he identified
both the inherent tension between development and environmental protection, and
the need to reconcile the two for the purposes of sustainability. 14 The same
interpretation can be applied in the Zimbabwean Constitution as it is similar to its
South African counterpart. The challenge that the country is facing is that, there is
very little litigation on this right rendering it one of silent rights in the constitution.
Another key section that reflects on environmental rights is section 62 (2) which
gives everyone the right of access to any information held by any person, including
the State, in so far as the information is required for the exercise or protection of a
right.15 Access to information guarantees a greater citizen participation. 16 This help to
ensure that the people of Zimbabwe know the need to protect the environment.
On the other hand the Constitution have got some shortcomings. The Constitution
have the “progressive realization “ clause , this is a clause that guarantees that any
redress sought by a private actor against the government can or will be done in
accordance with the state’s time and own resource and at their choosing. 17 The
problem with such a clause is that it gives the state a way to dodge responsibilities,
this due to the fact that the term “progressive” cannot be quantified. According to
Madebwe when he commented on the clause he said that such a qualified and
generic clause is simply inadequate , in the Zimbabwean context , more needs to
be done by directing the legislature to put legislation measures that ensure the
citizens enjoy their rights not limit them. 18 This shows us that the clause can be used
to limit people’s right to a good and clean environment.
11
Ibid
12
Constitution of South Africa sec 24
13
Fuel retailers Association SA PTY LTD v Director-General Enivironmental management, Mpumalanga and
Others 2007 (2) SA 163 (SCA).
14
Ibid.
15
Section 62 (2) of the Constitution of Zimbabwe Amendment (No.20) 2013
16
Dhliwayo :A Critical Examination of the Scope , content and Extent of Environmental Rights in the
Constitution if Zimbabwe
17
see not 14 above
18
Madebwe :African Human Rights Law Journal ,2015 P.p 124
In conclusion it can be noted that the 2013 constitution have improved the protection
of the environment to a lager extent although it have got some shortcomings.
BIBLIOGRAPHY .
ARTICLES
T,R Tanyanyiwa, A new hope for environmental justice in Zimbabwe,February 2018
Murombo: African Human Rights Law Journal , 2011
Madebwe :African Human Rights Law Journal ,2015
Dhliwayo :A Critical Examination of the Scope , content and Extent of Environmental Rights
in the Constitution if Zimbabwe
CASES
Manyame Park Residents v Chitungwiza Municipality 11152/03
STATUTES
The Constitution of Zimbabwe Amendment (No.20) Act
Environmental Management Act [Chapter 20.27]

The Constitution of the Republic of South Africa ,1996
INTERNET SOURCES
Sec.73-A-New-Hope-for-Environmental-Justice-in-Zimbabwe.pdf (mushoriwapasi.co.zw)
(PDF) Environmental Rights and the Zimbabwean Constitutional Debate: Implications for
Policy and Action (researchgate.net)

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Great Zimbabwe University

HERBERT CHITEPO LAW SCHOOL

NAME : BRIAN MAZETESE

REG NUMBER : M198069

MODULE TITLE : ENVIRONMENTAL LAW & POLICY

MODULE CODE : LLB 612

LECTURER : Mrs F. NDLOVU

YEAR : 2022 PART 3, SEMSTER 2.

PROGRAMME : BACHELOR OF LAWS DEGREE (LLB)

ASSIGNMENT : One [1].

CRITICALLY DISCUSS THE EXTENT TO WHICH THE INCLUSION OF

DUE DATE : 17 June 2022

Firstly, there is need to define environment as well as environmental rights.

Environmental rights relates to the right we have to the environment. 6 Section 73

BACKGROUND OF ENVIRONMENTAL LAW IN ZIMBABWE

The Lancaster Constitution which was promulgated after independence referred to

After independence in 1980, the post-colonial era witnessed remarkable measures

CONSTITUTIONAL ANALYSIS ON THE INCLUSION ON ENVIRONMENTAL

The Stockholm conference influenced nations to adopt constitutional provisions

The inclusion of environmental rights in the Constitution is also important as it gives

T,R Tanyanyiwa, A new hope for environmental justice in Zimbabwe,February 2018

Murombo: African Human Rights Law Journal , 2011

Madebwe :African Human Rights Law Journal ,2015

Manyame Park Residents v Chitungwiza Municipality 11152/03

The Constitution of Zimbabwe Amendment (No.20) Act

Environmental Management Act [Chapter 20.27]

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