UNIVERSITY OF IRINGA

LLB3 2020/2020
ENVIRONMENTAL LAW
BY
CHARLES, N.
ENVIRONMENT IS LIFE
 LECTURE ONE

INTRODUCTION TO ENVIRONMENT,
ENVIRONMENTAL LAW AND
DEVELOPMENT OF ENVIRONMENTAL LAW
GENERAL INTRODUCTION
 MEANING OF ENVIRONMENT AND
ENVIRONMENTAL LAW;
 Meaning of the term ‘Environment’’
 The term has been defined by various

authors and laws in different ways.

 In modern concept ’environment’’
means physical sorroundings including air,
space, water, land,plants and life(S. Ball & S.
Bell)
Cont…
 Article 1 of the EAC Protocol on Environment
and Natural Resources defines environment
to the complex set of physical, geographic,
biological, social, cultural and political
conditions that surround an individual or
organism and that ultimately determines its
form and nature of its survival.
Cont…
Section 3 of Environmental
Management Act(EMA),
defines it broadly, it says;
Cont...
 “environment” ‘includes the physical
factors of the surroundings of human
being including the air, land, water,
climate, sound, light, odour, taste, micro-
organisms, the biological factors of animal
and plants, cultural resources and the
social economic factors of aesthetic and
includes both the natural and the built
environment and the way they interact’.
Cont...
 In summary under that section
environment includes;
 Physical factors of the sorroundings of

human being
 Biological factors of animal and plants
 Cultural resources
 Social Economic factors of aesthetics
 It includes also both natural and built

environment and the way they interract.

Cont...
 Meaning of ‘Environmental Law’’
This phrase is a combination of two

words ie; environment & law

 In simple words it constitutes
enforceable rules and principles
regulating the activities of persons
which have impact on environment.
Cont…
 Other scholars have also defined the term
environmental law in various ways including;
 Shivji etal 2004,
 Defined environmental law as that part of the

law which provides for the management,

conservation and protection of living and
non-living organisms and the atmosphere
that support their continued existence.
Cont…
 In the environmental management there are
varieties of interlinked issues to be taken into
board.
 These include;
 i) measures taken to balance the natural

resources by limiting over-exploitation and

 ii) controlling introduction of new damaging

substances to the environment.

Cont…
 The control or management of the
environment essentially means the measures
taken to balance the natural resources.
 The measures may be of two kinds:
 I) one aspect may be to ensure balanced

utilization so as to prevent over-exploitation,

or
 Ii)to restore those that have been utilized to

strenuous levels.
Cont…
 Environmental law touches on practically
every aspect of society. It seeks to protect
human health, manage natural resources and
sustain the biosphere(the region of surface
and atmosphere of the earth occupied by
living organisms). (Wabunoha, R. A (Editor)
(2005), Handbook on Environmental Law in
Uganda, Volume II, (2nd Edition), at pg 1)
Cont…

 The main purpose of environmental law is to

regulate human activities so that land can be

used without inflicting adverse(hostile) effects

on the environment and good environmental

conditions can be maintained.

Rationale behind environmental laws
 Why do we have environmental laws?
 The reasons are two fold;
 i) To provide a regulatory framework for

those human activities which may undermine

the vital natural assets that support normal
economic and social life;
 II) To provide for appropriate legal theory to

explain and guide the path of the law in

environmental management
(Calestous Juma and J.B. Ojwang)
Cont…
 Environmental law deals with management,
use and protection of environment. It covers
a broad range of activities that affect air,
water, land, flora or fauna.
 It includes laws that relate to:
 • Protection of animals and plants, eg The

Wildlife Conservation Act, 2009

 • Planning for the use and development of

land, e.g The Urban Planning Act, 2007

Cont…
 • Mining, exploration and extractive
industries, e.g The Mining Act, 2010
 • Forestry, e.g The Forest Act, 2002
 • Pollution, e.g The Environmental

Management Act, 2004

 • Fisheries, e.g The Fisheries Act, 2003
 • Land and management, e.g The Land Act,

1999 and The Village Land Act, 2009

Cont…
 • Agriculture and farming, e.g The Cereals
and Other Produce Act, 2009, The Animal
Diseases Act,2003
 • Waste management, eg The Environmental

Management Act, 20009

 • Climate change and emissions,
 • Water resource management (lakes,

wetlands, rivers and oceans)

 • Chemicals and pesticides, eg The

Fertilizers Act, 2009

Cont…
 • Weeds and invasive species
 • Marine life, eg. The Marine Parks and

Reserve Act, 1994 and the Exclusive

Economic Zones Act, 1989.
 • Conservation of natural and cultural

heritage, The Antiquities Act, 1964 as

amended in 1979
Functions of environmental laws
 Set offences and penalties for causing harm
to the environment which is not authorised,
eg water, air and water pollution.
 Assess, control or stop certain activities (such

as land use and development) before they are

carried out
 Set standards for how activities will be

controlled
 Set standards on how environmental
decisions and approvals will be made
Cont,,,
 Enable members of the public to take part in
environmental decision-making
 Create institutional framework for
environmental management
 Create specialist courts and tribunals (e.g.

The Environmental Tribunal under the

Environmental Management Act, 2004) to
deal with the matters concerning
environment.
Sources/categories of environmental
law in Tanzania
 Common law
The modern environmental law
basically developed from the common
law principles found in the law of
torts, administrative law as well as
criminal law
 Example it was tort law under which

the first attempt was made to control

pollution under nuisance .
Cont...
 Where there is unreasonable
interference with the use and
enjoyment of another person’s property
eg.land amounts to nuisance.
 Under common law environmental
litigation revolves around various
doctrines ie;
 Nuisance
 Trespass
Cont...
 Negligence
 Strict liability
 Cont...

 Nuisance iscreated when an

owner or occupier of land
unreasonably uses that land in a
way that substancially interferes
with the rights of others in the
area.
Cont...

Example in the case of Lunda v.
Mathew a cement plant was held
liable for emitting debris dust and
fumes that encompassed a
landowner’s house and aggravated his
bronchitis and emphysema.(damage of
air sucs of the lungs). Then the owner
of the cement plant was held liable.
Categories of nuisance
 Private nuisance
 Public nuisance
Cont…
 In the 19th Century, private nuisance was the
most common basis for tortuous action for
industrial pollution. Private nuisance refers to
substantially and unreasonably interference
with another person’s right to use and
enjoyment of his land. It is one of the most
commonly used actions for addressing
environmental concerns
Cont…
 The tort of private nuisance arises where there
has been an intentional or negligent act which
causes unreasonable and indirect injury to
land, building or vegetation, or a substantial
interference with a landholder’s interest in the
use or enjoyment of the land by excessive
noise, dust, fumes, smells and so on.
 An individual’s ability to obtain redress in
private nuisance is tied to a property interest
in a specific parcel of land.
Cont…
 In relation to environmental protection, the
action for private nuisance seeks to
compensate an individual who has been
affected by certain types of environmental
harm such as those from identified sources.
Elworthy, S. and Holder, J, Op. Cit, at pg 57
Cont…
 In its generality, private nuisance may be
described as a mechanism to for the private
control of environmental pollution.
 The person who has been harmed by
pollution could bring an action seeking an
injunction, a court order prohibiting the
polluting behaviour and or monetary
compensation i.e. monetary damages for the
harm caused.
Cont…
 In the case of St Helen’s Smelting Co v Tipping the
court provided as follows:
 “In these few sentences I think everything is
included: the Defendants say, “if you do not mind
you will stop the progress of works of this
description.” I agree is so, because, no doubt, in
the country of Lancaster above all other countries,
and are the means of developing the national
wealth, you must not stand on extreme rights and
allow a person to say, “I will bring an action against
you for this and that, and so on.” Business could
not go on if it were so…
Cont…
 Everything must be looked at from a
reasonable point of view; therefore the law
does not regard trifling and small
inconvenience, but only regards sensible
inconveniences, which sensibly diminish the
comfort, enjoyment or value of the property
which is affected.”
 (1865)11 ER 1483 at pg 1486-7, See

Elworthy, S. and Holder, J, Ibid.

Cont…
 Generally, as far as nuisance concerns, the
court considers that small inconveniences are
tolerable and the court will not interfere
unless it is shown that the inconvenience was
one which is intolerable. An action for
nuisance may base the allegations that the
injury claimed is caused by dirt, smoke,
fumes, vibrations, noise, vapour, and smell
emanating from the defendant’s action like
industrial activity and so on.
Public Nuisance
 Public nuisance is another type of nuisance
which is also significant in protecting the
environment against pollution.
 Public nuisance, unlike private nuisance,
affects significantly large number of people in a
society. It occurs when a person causes a
nuisance which “endangers the life, health,
property morals or comfort of the public or
obstructs the public in the exercise or
enjoyment of rights common to all members of
the community
Cont…
 The interference has to be both substantial
and unreasonable.
 Actions in public nuisance may be brought

on behalf of the community by;

 1. The Attorney-General,
 2. A person who has suffered damage over

and above that suffered

 3. The public in general.
Contd…
 In the case of AG versus PYA Quarry Ltd
(1957) 2 QB 169; 1 All ER 894

 The Attorney General went to court seeking

an injunction against the defendant who was
working with the quarries/stone mining
causing a lot of noise, dust and vibrations
from the quarry affecting almost the whole
District County Council.
private nuisance vs public nuisance
 In AG vs PYA the court had to decide what
constitutes an offence of public nuisance and
how it differed from private nuisance.
 1. any nuisance is public if it materially affects
the reasonable comfort and convenience of life
of a class of her majesty’s subjects.(Romer LJ)
 2. Public nuisance affects her majesty’s
subjects generally whereas private nuisance
affects particular individuals.(lord denning MR)
CONTD…
 In this same case another important question was
raised as to when do the number of individuals
become her majesty’s subjects generally? Lord
Dennings said this is a difficult question to
answer as everyone will have his own views.
 Thus he said public nuisance is a nuisance which
is so widespread in its range or so indiscriminate
in itself that it would not be reasonable to expect
one person to take proceedings on his own
responsibility to stop it but should be taken on
the responsibility of the community at large.
Cont…
 Lord Denning stated that:
 “Public nuisance affects Her Majesty’s
subjects generally whereas private nuisance
affects only particular individual…. It is
difficult to determine the number of people
to be affected; public nuisance is so
widespread in its range and also
indiscriminate to expect one person to take
action on its own or to take proceedings.”
Cont...

Trespass involves an intentional
interference with the property
interest of an owner or occupier of
land.
 For the interference to amount to

trespass there has to be deliberate

misconduct (interference).
Cont…
 Trespass occurs where a person directly,
intentionally or negligently and without
permission causes some physical interference
with another person’s property. Trespass
does not require proof of damage or harm.
An example of trespass in an environmental
situation might be if a person deliberately
sprays pesticides or dumps waste on your
property
Cont…
 The action in trespass protects against
interference with land whether or not damage
is caused. In terms of water pollution the tort
of trespass arises where an unauthorised
person brings about the direct entry of
polluting matter in to the water of another
person without justification.
Cont...
 Negligence, occurs when the
defendant fails to exercise the
amount of care that would be
exercised by a reasonably prudent
person under the circumstance.
 It might be acciddental but
foreseeable.
Cont…
 People only owe a duty of care to those
people who are so closely and directly
affected by their activities that they ought
reasonably to have foreseen that their
conduct may be likely to cause damage to
that other person.
Cont...
 In the case of Donoghoue v.
Stevenson,
Lord Artkin in articulating the
neighbouring principle ; he
introduced something called ‘duty
of care’’ and this has great
importance in relation to
environmental law.
Cont...
 He said; ‘ you must take a
reasonable care to avoid acts or
ommissions which you can
reasonably foresee would likely to
injure your neighbour’’ ....And
who in law is my neighbour?
Cont...
The answer seems to be persons who
are so closely connected and can
directly be affected by your
acts(paraphrased).
 Users of environment have got duty of

care towards others who may

reasonably foreseen to be affected by
activities done by other users of
environment.
Cont…
 Negligence may also be used as a cause of
action to address environmental harm. To
plead negligence, the person bringing the
action must be able to prove that:
 The defendant owed the plaintiff a duty of

care
 The defendant breached this duty; and
 This breach of duty caused damage to the

plaintiff
Cont...
 Strict liability, to recover under this
doctrine, the landowner must
demonstrate that a condition or
activity qualifies as abnormally
dangerous and was in fact the cause
of the environmental injury.
 Example storing gas in large
amounts, and transmitting high-
powered electricity under city streets.
Rylands v. Fletcher
 This was the case on strict liability where;
 The plaintiff was working in a coal mines

and this mines were underground mines

which were near land of the plaintiff where
the dam was constructed
 After the reservoir was finished one of the

defendants tunnel bursted and water

escaped underground to the plaintiff’s
mines then the mine floaded
Cont...
 The plaintiff sued the defendant and the
defendant was held liable on strict liability
principle.
 The court stated that; ‘A person who for his

own purpose in course of natural use of land

brings on his land or collects and keeps
there anything likely to do mischief if it
escapes must keep that thing at his peril so
that when it escapes he will be liable’’
Cont...
 A case to read
 MC Mehta v. Union of India
Cont…
 Riparian Rights
 The term riparian refers to the owner of the

land along the river (bank). Riparian rights are

common law rights relating to the use of
water associated with the ownership of the
bank of a water course. Riparian owner do
not own the water which flows in streams and
water causes but the land owner does have
certain rights over it (rights related to the use
of water).
Cont…
 These are regarded as akin (similar
character) to a proprietary right and invasion
of them is treated as damage to land.

 In the case of John Young & Co v Bankier

Distillery Co, (1893) AC 691 at pg 691, (1891
– 4) All ER 439 at 441, HL
cont
 the appellant company owned a distillery
situated on the banks of a stream and used
water from the stream in its operations. The
respondents owned a mine higher up the
stream and used the water in the working of
the mine. The water that the mine owners
discharged back into the stream was pure,
but its chemical properties were altered by its
use, making it hard and unsuitable for
distilling. :
Cont…
 The House of Lords found that the lower
riparian owner, the distillery company, had
right to receive water without alteration of its
natural character.

 Lord Mac Naughten stated that;

Cont…
 ‘A riparian proprietor is entitled to have the
water of the stream on the banks of which his
property lies, flow down as it has been
accustomed to flow down to his property,
subject to the ordinary use of the flowing
water by upper proprietors, and to such
further use, if any, on their part in connection
with their property as may be reasonable
under the circumstances….
Cont…
 …every riparian owner is thus entitled to the
water of his stream in its natural flow,
without sensible diminution or increase, and
without sensible alteration in its character or
quality. Any invasion of this right causing
actual damage, or calculated to found a claim
which may ripen into an adverse right,
entitles the party injured to the intervention
of the court.”
Cont…
 The riparian owner is able to exercise, as of
right, the right available to all members of the
public to use running water since he has an
access to the water which non-riparian owners
do not have. The right of use is available
equally to all riparian owners and therefore
any one riparian owner must use it reasonably.
No one riparian owner may use the water in
such a way as to prejudice the right of other
riparian owners [Embrey v Owen (1851) 155
E.R. 579].
Cont…
 The scope of the riparian owner’s rights
extends to access, quantity and quality.
Access enables the riparian owner to
navigate, embark and disembark on his land.
Quantity enables the riparian owner to
abstract, divert, obstruct or impound the
water to the extent of its natural quantity.
Cont…
 He may use the water abstracted for ordinary
(domestic) purposes such as drinking,
cooking and washing, and for these purposes
may abstract as much as he needs without
restriction.
Cont…
 . Secondly, he may use it for “extraordinary”
purposes such as irrigation, but in this case
must restrict the quantity he abstracts to that
which does not prejudice the rights of other
riparian owners.
 Thirdly, a riparian owner may attempt to

abstract water for use outside of his land, but

the common law disallows such “foreign” use
of water
Cont…
 . On quality, as discussed in the above case
of John Young & Co, the riparian owner is
entitled to have the water in its natural state
of purity. Therefore, if any of these rights are
interfered with, the riparian owner has a
cause of action.
National Laws
 These can be categorised into;
(a) Framework Environmental law
 Environmental Management Act EMA
2004
This is a principal legislation which
regulates environmental matters as
a framework law and if any other legislation
conflicts to it on environmental matters it
prevails. (see s.232 of this Act)
Cont...
(b) Sectoral Environmental Law
These are environmental laws
regulating environmental matters in
their specific sectors.
 Example;
 Land Act 1999
 Forest Act 2002
 Water resources Management Act 2009
Cont...
(c) Constitution of United Republic of Tanzania
 Article 14
 Article 27
Festo Balegere v. DSM City Council
 This case was about disposal of refuse
in an area near residential area and
burning wastes which generated
smoke, offensive smells thus attracted
flies to the area.
 The matter was brought to court by

the applicants
Cont...

 Held;

The court ruled that it was the

denial of basic right deliberately to
expose anybody”s life to danger and it
was eminently mostrous to enlist the
assistance of the court in this
infringement.
Cont...
 So,here the court found that right to
life as per Article 14 of the
constitution includes right to clean
and healthy environment.

 Thiswas also illustrated in the case of

Joseph D. Kessy v. DSM City Council
where the court said ;
Cont...
 “Article 14 of the constitution of URT
1977 provides that ...
 ...Every person has a right to life and

protection of his life by the society...

Cont...

...It is therefore a contradiction in
terms and denial of this basic
right deliberately to expose
anybody’s life to danger or what
is environmentally monstrous to
enlist the assistance of the court
on this infrindgement’’.
International environmental laws
 There have been principles developed under
international environmental law progressively
and these have now gained general support
and application in practice. These principles
may provide a basis for cause of action at
either the international law or national law.
 Previously these principles were found in

preambles to treaties and conventions but

now they have found their way into the main
bodies of MEAs
Cont...
 Note;
 Preamble is an introductory statement
in a document that explains the
documents purpose.
 Multilateral Environmental Agreements

(MEAs) are legally binding agreements

btn 3 or more states relating to
Environment.
Examples of MEAs
 The 1992 Convention on Biological
Diversity
 African convention on Preservation of

Fauna and Flora

 The European Convention on the
Protection of Useful Birds for
Agriculture
Philosophical Approaches to
Environmental Problems
 There are two main philosophical ethical
approaches in addressing environmental
problems.
 These are;
 (I)The Anthropocentricism and
 (II) Biocentrism.
CONT…
 Fundamental distinction must be made
between the two approaches.
 Briefly, Anthropocentrism is a human centred

environmental ethic which is based on

Theocracy, that is, Religion;
 On the other hand, Biocentrism is a life

centred ethical approach which contends that

every living thing has intrinsic value by being
a member of the community.
CONT…
 (1)Anthropocentrism (Human Centred)
 Anthropocentrism is the belief that human

beings and human society are, or should be,

the central focus of existence. It is an
approach based on theocracy, that is,
religion.
 It contends that human beings moral duties

regarding the natural world, the environment

and other creatures is determined by the duty
he/she owes one another as human being
Cont,,,
 Consequently, there is no relation between
man and the natural world but through
his/her moral duty towards other human
beings.
 This is because nature is of no value but very

vital in connection of the well being of the

entire mankind.
Cont…
 The importance of nature emanates from a
number of reasons;
 (a) Nature provides Biosphere which contains
human beings shelter, food, water and oxygen.
 (b)Nature provides other benefits which are
favorable for human beings well fare. Man
therefore is considered to be the central
component of the planet.
 This relationship is borrowed from the Holy Bible
and the Glorious Qur’an which calls upon man to
subdue nature.
Cont…
 For example, the Holy Bible Genesis 1: 27-28
ordains;
 “…So God created man in his own image…

And God said to them: “Be fruitful and

multiply and fill the earth and subdue it; and
have domain over the fish of the sea, and
over the birds of the air, and over everything
that moves above the earth…”
Cont…
 The material condition for anthropocentric
ethics is “respect for persons”, Man has
dominion over the natural world. It is
assumed that human beings are to act on
anything as he/she pleases, as long as such
liberty is not injurious to other human
beings. And such privilege should be for the
purpose of serving mankind.
Cont…
 . For instance, man should not pollute water
because pollution is injurious to his fellow
human beings. There is a Latin maxim “Sic
Utere Tuo Ut Alienum Non Laedas” which
translates into ‘You may use your property in
any manner whatsoever so long as such
usage does not harm others’.
Cont…
 This adage is reflected in the Law of Torts
where the jurists in the development of the
environmental utilized the biblical adage
“Love your neighbour as you love yourself” to
mean: Take care of the present, the future
and the posterity.
Cont…
 (ii) Biocentrism (Life Centered)
 Biocentrism is a life centered environmental

ethical approach which contends that every

living organism has inherent intrinsic value
by virtue of being a member of the
community.
 Biocentrism is a term that has several

meanings but is most commonly defined as

the belief that all forms of life are equally
valuable and humanity is not the Centre of
existence.
Cont…
 Biocentric positions generally advocate a
focus of the well-being of all life in the
consideration of ecological, political, and
economic issues. For example, ants feed on
virus and bacteria, a situation which reduces
many diseases. Accordingly, human beings
are not above other creatures, but have been
entrusted with duty towards preservation of
nature which emanates from his relationship
with other living and non living things
Cont…
 Man conserves trees not because they
produce oxygen but because trees are trees.
Man should respect nature because it gives
him/her some intrinsic values and benefits.
 The material condition for biocentric ethics is

“respect for nature”. See section 202 of the

Environmental Management Act
Development of Environmental Law
 Development of International Environmental Law
 Much of the law to protect the environment has
roots that are deep in history, but the conceptual
basis of environmental law is still developing.
(Elworthy, S. and Holder, J (1997), Environmental
Protection: Text and Materials, Butterworths,
London, at pg 3)
 The industrial revolution and the development
in science and technology both contributed to
the development of modern international
environmental law.
cont…
 The development of International
Environmental Law may be discussed on three
phases: the period before 1900s; the period
between 1900 and 1970 (i.e Before
Stockholm Conference) and the period from
1970 and beyond (the Modern Era of
International Environmental Law).
Cont…
 The Period before 1900s
 Before 1900, there were few multilateral or
bilateral agreements concerning international
environmental issues. Relevant international
agreements were based on unrestrained
national sovereignty over natural resources and
focused primarily on boundary waters,
navigation, and fishing rights along shared
waterways, particularly the Rhine River and
other European waterways. They did not
address pollution or other ecological issues.
Cont…
 The period between 1900 and 1970
 In the early 1900s, countries began to conclude
agreements to protect commercially valuable
species. These agreements include the 1902
Convention for the Protection of Birds Useful to
Agriculture, the 1916 Convention for the Protection
of Migratory Birds in the United States and Canada,
and the Treaty for the Preservation and Protection of
Fur Seals signed in 1911. Only one convention
focused on wildlife more generally: the 1900 London
Convention for the Protection of Wild Animals, Birds
and Fish in Africa.
Cont…
 By the 1930s and 1940s, states recognized the
importance of conserving natural resources and
negotiated several agreements to protect fauna and
flora generally. These include the 1933 London
Convention on Preservation of Fauna and Flora in Their
Natural State (focused primarily on Africa), and the
1940 Washington Convention on Nature Protection and
Wild Life Preservation (focused on the Western
Hemisphere). During this period, states also concluded
the well known the 1946 International Convention for
the Regulation of Whaling, as well as other conventions
concerned with ocean fisheries and birds.
Cont…
 Generally, in the first half of the 20th Century there
was little development and application of
customary international norms to environmental
issues.
 During the 1950s and early 1960s, the international
community was concerned with nuclear damage
from civilian use (a by-product of the Atoms for
Peace Proposal) and marine pollution from oil.
Thus, countries negotiated agreements governing
international liability for nuclear damage and
required measures to prevent oil pollution at sea.
Cont…
 In the 1960s, environmental issues began to
emerge within countries. Conventions were
negotiated relating to interventions in case of
oil pollution casualties, to civil liability for oil
pollution damage, and to oil pollution control
in the North Sea. The African Convention on
the Conservation of Nature and Natural
Resources was concluded in 1968.
Cont…
 1970 and Beyond (The Modern Era of International
Environmental Law)
 The period from 1970s to date is also referred to as
Morden International Environmental law. It is in this
period when significant developments in
international environment law took place. A number
of developments in the 1960s led to public concern
that the rapid increase in industrialisation following
the Second World War was degrading the natural
world. The widespread use of pesticides in modern
agriculture was affecting environment on different
ways.
Cont…
 Acidic rain and water pollution, among other factors,
called attention of the international community to
develop ways to protect the natural world. It became
clear that action to prevent the harms caused by
pollution was needed at the international level. In
response to these environmental problems, in 1968,
the United Nations General Assembly passed a
resolution which called for an urgent intensified action
at national and international level, to limit, and where
possible, to eliminate the impairment of the human
environment GA Res 2398 (XXXIII) of 3 December 1968.
See Elworthy, S. and Holder, J, Op. cit. at pg 133.
Cont…
 Following the General Assembly resolution of
1968, in 1972 the United Nations convened a
Conference of Human Environment
(Stockholm Conference) hosted by Sweden in
Stockholm, where 113 states participated. It
is in this Conference, for the first time,
governments of various countries discussed
environment as a global policy issue.
Cont…
 At the end of the Conference, a Declaration
(Stockholm Declaration) was adopted. Apart
from the Declaration, an Action Plan which made
over a hundred recommendations was adopted.
The most significant outcome of the Stockholm
conference was the establishment of the United
Nations Environment Programme (UNEP) in 1973.
The task of UNEP is to identify research needs
and stimulating environmental programmes
amongst other agencies of the United Nations
and amongst regional groupings of states.
cont,…
 UNEP has progressively developed
international law particularly international
environmental law by producing guidelines,
conventions and protocols to protect regional
seas, regulate the environments of hazardous
wastes and to protect the ozone layer.
 Ibid. at pg 135.
Cont…
 In 1983 the United Nations established the World
Commission on Environment and Development (the
Brundtland Commission). The task of the
commission was to look at the world’s
environmental problems and propose a global
agenda for addressing them. In 1987, the
Commission published its report, Our Common
Future (the Brundtland Report). The report came up
with the issue of sustainable development which
emphasises on meeting the needs of the present
without compromising the ability of future
generation to meet their own needs.
Cont…
 The name Brundtland comes from Gro Herlem
Brundtland, the head of the Commission and former
Prime Minister of Norway.
 Another important Conference, the 1992 United
Nations Conference on Environment and
Development (UNCED) (Rio Conference), was held in
Rio de Janeiro, Brazil.
 The Conference led to the adoption of several
important legally binding environmental treaties.
These include the 1992 United Nations Framework
Convention on Climate Change and the 1992
Convention on Biological Diversity.
Cont…
 In addition to above mentioned, the parties
adopted a 'soft law' (non-binding agreements)
Declaration on Environment and Development
which reaffirmed the Stockholm Declaration
and provided 27 principles guiding
environment and development (now referred to
as the Rio Declaration). Another influential soft
law document that the parties adopted was
Agenda 21, a guide to implementation of the
treaties agreed to at the Summit and a guide as
to the principles of sustainable development.
Cont…
 Agenda 21 also established the United Nations
Commission on Sustainable Development (CSD) and
the Global Environment Facility (GEF). Finally, the
non-legal, non-binding Forest Principles were
formed at the Earth Summit
 Since 1970, hundreds of international
environmental instruments have been concluded.
Including bilateral and multilateral instruments
(binding and nonbinding), there are close to nine
hundred international legal instruments that have
one or more significant provisions addressing the
environment.
Cont…
 A further meeting was held in 2002, known as the World
Summit on Sustainable Development (WSSD), held in
Johannesburg, South Africa. Notable is the absence from
its title of the word 'environment'. Although this
meeting was held to mark the tenth anniversary of the
Earth Summit, it is considered by many
environmentalists and environmental lawyers to have
been less than successful in environmental terms. It
attained only limited progress towards stricter global
regulation of human impacts on the natural
environment. Nonetheless the WSSD brought a renewed
emphasis on the synergies between combating poverty
and improving the environment
Cont…
 Common Law Principles and the Development of
Environmental Law;
 The term common law refers to the ancient law of
England based upon societal customs which is
recognised and enforced by the judgments and
decrees of the courts. It is the body of principles and
rules of action, embodied in case law rather than
legislative enactments that derives its authority from
the community customs and traditions that evolved
over the centuries as interpreted by judicial tribunals.
http://legal-dictionary.thefreedictionary.com/Comm
on+law
, last retrieved on Wednesday 3, July 2015
Cont…
 Therefore Common law is based on precedent (legal
principles developed in earlier case law) instead of
statutory laws.
 There are no specific common law actions designed to
protect the environment, as the common law has
principally developed to protect the individual’s rights
and private property rights. However, when an
environmental impact also interferes with an individual’s
right or a private property right, the common law can be
used to protect the environment indirectly. For this
reason, generally only a person whose interests have
actually been affected by the harm can bring an action
under the common law.
Cont…
 A breach of the common law is said to give rise
to a “cause of action”. Some common law
causes of action that might be used to protect
the environment are: trespass; private nuisance;
public nuisance; and negligence. Other
common law principles which may well provide
protection to the environment are the principle
of riparian right, and the rule in Rylands v
Fletcher
 (details about common law principles see
above)
Cont…
 Administrative Law/Judicial Review
 Judicial Review is a common law principles

developed in 18th and 19th Centuries

regarding the administrative law. Judicial
review is a form of court proceeding in which
a judge reviews the lawfulness of a decision
or action made by a public body.
Cont…
 In general terms judicial review may be
appropriate where:
 the challenge is based on an allegation that

the public body has taken an unlawful

decision or action, eg appeal to a tribunal,
and there is no adequate alternative remedy.
CONT…
 Judicial review has played a vital role to the
development of the modern environmental
law. Judicial review provides for the specific
remedies intended to challenge the exercise of
powers of a public authority where they
exercise such powers, relates to
performance/non-performance of a statutory
duty that has bearing in environmental rights,
then a person may use the judicial review
remedies like certiorari, mandamus,
injunction, declaration, etc.
Cont…
 Certiorari-a writ by which a higher court
reviews a case tried in a lower court
 Mandamus-a judicial writ issued as a
command to an inferior court or ordering a
person to perform a public or statutory duty.
 Injunction-a judicial order restraining a
person from an action, or compelling a
person to carry out a certain act.
CONT…
 In the case of the Village of Wilsonville v SCA
Service Inc, the plaintiff filed a complaint for
injunctive reliefs on the ground that the
operation of the defendant chemical waste
disposal site presents a public nuisance and a
hazard to the health of the citizens of the
village, the country and state. (Supreme
Court of Illinois) Case No. 31 UNEP
Compendium
CONT…
 The trial judge concluded that the site constituted
a nuisance and enjoined the defendants from
operating hazardous chemical waste handful in
Wilsonville village. It ordered the defendants to
remove all toxic waste buried there, along with
contaminated soil found at the disposal site as a
result of the operation of the landfill; the court
also ordered the defendant to restore and reclaim
the site. On these findings the defendants
appealed. Appellate Court unanimously affirmed
the trial court’s judgement.
CONT…
 Development of Environmental Law in Tanzania;
 The political history of Tanzania is very
significant in understanding the development of
environmental law in the country. Before
Tanzania attained her independence in 1961,
Tanganyika by then was firstly colonised by the
German. In 1919, after Second World War, it was
put under British control as a mandate territory.
In 1964 Tanganyika and Zanzibar united and
Tanzania was born. Matters which are union are
provided in the Articles of Union.
CONT…
 However environmental issues are non union
matters. This, therefore, means that Mainland
Tanzania has a distinct body of laws from
that of Zanzibar, providing for environmental
management.
 The Development of environmental law in

Tanzania (Mainland) may be divided in to

three phases viz; pre- colonial era, colonial
era and after independence.
CONT…
 Pre- Colonial Era
 Before the coming of colonialism the people of Tanzania
had their own ways of protecting the environment.
Generally, environmental protection was achieved
through the use of Indigenous Knowledge System (IKS).
 The term Indigenous Knowledge is used to describe the
knowledge systems developed by the community as
opposed to the scientific knowledge that is generally
referred to as modern knowledge. It can also be defined
as a body of knowledge built up by a group of people
through generations of living in close contact with
nature .
CONT…
 A broader definition is that indigenous
knowledge is the knowledge used by local
people to make a living in a particular
environment. (Mwaura, P (Editor) (2008),
Indigenous Knowledge in Disaster
Management in Africa, UNEP, Nairobi, Kenya,
at pg 21)
Cont….
 while there may be similarities in indigenous
knowledge systems, indigenous knowledge is
specific to communities and local
environments. For example Indigenous
knowledge among the Makonde of Southern
Tanzania who lives by the shores of Indian
Ocean can hardly be the same as that of the
Pare people living in the mountainous
Northern side of Tanzania which is
characterized by steep slopes and low
temperature. (Ibid.)
Cont…
 Indigenous resource management systems
reflected the way communities organized
their lives within the constraints of
environment in which they lived. Decision-
making institutions focused on utilizing and
managing environment resources based on
the knowledge of the community. This was
done within the framework of their world, in
other in accordance with their ethics, norms
and beliefs
Cont…
 . Indigenous knowledge of environmental
management allowed classification of soil and
vegetation types, prediction of resources
availability and planning of use strategies.
This knowledge enabled communities to
avoid over-utilization over an area through
monitoring its status and adjusting their
resource use patterns.
Cont…
 The indigenous communities and farmers in
Tanzania as in other parts of Africa have
developed intricate systems of gathering,
predicting, interpreting and decision-making
in relation to weather. They were able to use
knowledge of weather system such as rainfall,
thunderstorms, windstorms and sunshine to
prepare for the future weather.
Cont…
 Land management under indigenous knowledge
involved a number of farming technologies that
have repercussions across the whole spectrum of
conservation. These included such practices as
slash-and-burn, shifting cultivation, use of grass
strips, intercropping, selective cultivation, and a
number of other technologies and practice that
sake to optimize food production under varying
environmental conditions. In addition, many of the
communities surveyed combined cultivation with
livestock rearing (mixed farming).
Cont…
 It is beyond doubt that indigenous knowledge was
important for the survival of many indigenous
communities and the preservation of biodiversity.
Warren notes that indigenous knowledge provides the
basis for grassroots decision-making, much of which
takes place at the community level through indigenous
organizations and associations where problems are
identified and solutions to them are determined.
“Solution-seeking behavior is based on indigenous
creativity leading to experimentation and innovations as
well as the appraisal of knowledge and technologies
introduced from other societies.”
 Ibid., at pg 30
Cont…
 Indigenous knowledge, particularly agricultural and
environmental knowledge, gained international
recognition after the United Nations Conference on
Environment and Development (UNCED) held in June
1992 in Rio de Janeiro. Agenda 21, one of the
environmental agreements signed at UNCED,
emphasizes that governments and intergovernmental
organizations should respect, record, and work toward
incorporating indigenous knowledge systems into
research and development programs for the
conservation of biodiversity and sustainability of
agricultural and natural resource management systems
Cont…
 Other international documents, such as the
1980 “World Conservation Strategy” by the
International Union for the Conservation of
Nature and Natural Resources (IUCN), also
paved the way for the recognition of the
important role played by indigenous
knowledge in biodiversity and human
development. Ibid., at pg 23
Cont…
 As with other forms of knowledge, indigenous
knowledge has its limitations or weakness,
and these must be recognized if its integration
with scientific knowledge is going to be
worthwhile. Certain indigenous knowledge
practices may also become outdated because
of rapid changes in the environment or the
socio-economic and cultural scene. Not all
indigenous knowledge practices are naturally
in harmony with the environment.
Cont…
 There is historical and contemporary evidence
that indigenous peoples have also committed
environmental wrongs through over-grazing,
over-hunting, or over-cultivation of the land
and it is misleading to think of indigenous
knowledge as always being “good”, “right” or
“sustainable”.
 Ibid., at pg 31
Cont…
 2 Colonial Era
 The colonial government brought into
Tanzania legislation to deal with environment
during the colonial era. This was by way of
international agreements and colonial
enactments. The earliest were brought by the
Germans but these were not from
international perspective. Most of them dealt
with fencing and fines approach to
environmental management.
Cont…
 The colonial regimes introduced also the
concept of licences to appropriate exploit the
natural environmental resources. Most
customary practices that sought to protect
environment were rendered redundant.
 During the colonial period, development was
driven by political and economic imperatives.
The natural environment was seen as a free
good and the preoccupation of the colonial
governments was how to control as much as
possible of it for their own economic benefit.
Cont…
 Administrative powers was used to penetrate the local
production systems and either co-opt or remove indigenous
populations.
 The colonial government progressively alienated land from
the indigenous population for European settlement, and then
entrenched European private property rights as a buffer
against the impending African rule. It is argued that the
African sector of the colonial economy was systematically
exploited and under-developed in order to support the settler
sector.
 (Calestous Juma and J.B. Ojwang (Eds) (1996), In Land We
Trust: Environment, Private Property and Constitutional
Change, London: Zed Books/Nairobi: Initiatives Publishers at
pg.19)
Cont…
 Post-independence
 After independence the colonial legislations

were inherited. However the changes which

took place in international regime from
1970s, also affected environmental regime in
Tanzania. In 1983 the first environmental
legislation, the National Environment
Management Act No. 19 of 1983, Cap 191 R.E
2002.
Cont…
 The Act established the National Environment
Management Council (NEMC). The functions
of NEMC, among others, were to formulate
policy on environmental management and
recommend its implementation by the
Government; and to co-ordinate the activities
of all bodies concerned with environmental
matters and serve as a channel of
communication between these bodies and the
Government.
Cont…
 In 1984, the Constitution of the United
Republic of Tanzania was amended to provide
for the Bill of Rights. Although there was no
direct provision related to environment, the
court have interpreted some of the provisions
contained in the bill of right to achieve
environmental protection. For example the
High, in the landmark case of Festo Balegele
and Others v Dar es Salaam City Council (see
above)
Cont…
 Despite the enactment of the National
Environment Management Act of 1983 and the
enactment of other environmental related
legislations, the corpus of environmental
legislations was broad, segmented and sectoral
oriented. Responsibility for environmental
protections was shared among different line
ministries with no formal co-ordination
between them at both the programme and
policy level, save ad hoc co-ordination
arrangements to satisfy specified objectives.
Cont…
 In 1997, the government promulgated The
National Environmental Policy. The policy
provided a framework for making fundamental
changes that are needed to bring
environmental considerations into the
mainstream of decision-making in Tanzania. It
also seeks to provide policy guidelines and
plans and gives guidance to the determination
of priority actions, for monitoring and regular
review of policies, plans, and programmes.
Cont…
 It further provides for sectoral and cross-
sectoral policy analysis thus exploiting
synergies among sectors and interested
groups. In 2004 the government enacted the
Environmental Management Act, No 20 of
2004, a framework legislation which provides a
link for various environmental related
legislations and also provides coordination
among various institutions responsible for
management of the environmental in Mainland
Tanzania. (Pallangyo, D.M. Op. Cit., at pg 30)
Cont…
 As pointed out earlier, the environmental
legal regime of Tanzania is also shaped by
what takes place in international community.
Tanzania is a signatory and has ratified
various international and regional agreements
which provide for environmental
management.
Cont…
 These include:
 • Convention on Biological Diversity ratified on 8
March 1996;
 • Convention for the Protection, Management and
Development of the Marine and Coastal
Environment of the Eastern African Region and
Related Protocols ratified on 1 March 1996;
 • United Nations Convention to Combat
Desertification ratified in April 1997;
 • United Nations Framework Convention on
Climate Change ratified in April 1996;
cont
 The Vienna Convention on the Protection of Ozone
Layer and Montreal Protocol on Substances that
Deplete the Ozone Layer acceded on 7 April 1993
and 16 April 1993 respectively;
 • Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal
acceded on 7 April 1993 and,
 • Bamako Convention on Ban of the Import into
Africa and the Control of Transboundary Movements
of Hazardous Wastes within Africa ratified on 7 April
1993.
 Ibid., at pg 19
Cont…
 Generally the main sources of environmental law in
Tanzania are the common law and the statutory law in
the form of principal legislation, subsidiary legislation
and international law and the Constitution.
 The most important common law principles that are
relevant to environment are the torts of negligence,
nuisance and the rule in Rylands v Fletcher (1868) L.R.3
H.L 330. Even where no specific precedent exists in the
Tanzanian context, it is fair to say that these developed
environmental common law rules may very well bind
individuals and businesses. This is by the virtue of the
Judicature and Application of Laws Ordinance, Cap. 453.
Cont…
 Application of common law principles in
environmental litigation in EA
 Courts in East Africa have applied common law
principles that are grounded/have a
basis/foundation in the law of torts,
administrative law (judicial review) and criminal
law in cases related to environmental
protection. In some cases courts in E.A have
used the provisions of the Constitutions to
decide cases that have a bearing on
environmental law.
assignment
 Negligence
 Gitiriku Wainaina & Mrs Gitiriku Wainaina v Kenafric Industries &
Manil Industries (Republic of Kenya in the National
Environmental Tribunal at Nairobi Tribunal Referral No Net
08/2006 by the National Environmental Management Authority)
 1.3.4.2 Nuisance
 Sandhu Construction Company v. Peter Shayo (1984) TLR 127
(Tanzania)
 Festo Balegele and 749 Others v. DSM City Council, Misc. Civil
Case No. 90 of 1991, High Court of Tanzania, Dar es Salaam
(Tanzania)
 Paul K. Nzangu vs. Mbiti Ndili, High Court of Kenya at
Machakos, Civil Appeal No. 8 of 1991 (p. 36 Case 14 UNEP
Compendium
ASSIGNMENT
 3 Judicial Review
 Felix Mavika and another v. DSM City Council,

Case on injunction to stop the city from dumping

solid waste
 Festo Balegele and 749 Others v. DSM City

Council, Misc. Civil Case No. 90 of 1991, High

Court of Tanzania, Dar es Salaam (Tanzania)
 1.3.4.4 Riparian Rights
 Nairobi Golf Hotels (Kenya) Ltd. v Pelican

Engineering and Construction Co. Ltd. (High

Court of Kenya, Nairobi, Case 706/1997)
ASSIGNMENT
 Criminal
 Stephen Thiongo Karanja v. The Republic (1991) C.A
(Kenya)
 Chapter XVII of the Penal Code, Cap 16 of Laws of
Tanzania R.E 2002, covers Nuisances and offences
against health which, inter alia, are:-
 Common Nuisance
 Fowling of water
 Section 184 provides for the crime of fowling water:
 Section 185 provides for the crime of fowling air:
 Section 186 provides for the crime of offensive trades
 TOPIC TWO
OVERVIEW OF INTERNATIONAL
ENVIRONMENTAL LAW
OVERVIEW OF INTERNATIONAL ENVIRONMENTAL LAW

 Public International Law

 International law, on one hand, concerns agreements
among different nations and on another hand concerns
agreements between citizens or corporations of
different nations. Agreements or treaties among
different nations are generally referred to as public
international law. Contracts between private parties
(corporations or citizens) residing in different nations
are generally referred to as private international law.
Because the field of international environmental law
focuses on the relations and agreements among
nations, it is part of public international law.
Cont….
 Sources of International Environmental Law
 There is no supreme international body

responsible for law making, so international

law is derived from a number of sources and
a diversity of institutions. Sources of
international law as specified under Article
38(1) Statute of International Court of Justice
are the main sources of international
environmental law too
Cont…
 Treaties
 Treaties, they are also known as conventions,
accords, agreements and protocols as defined by
the 1969 Vienna Convention on the Law of
Treaties. They are agreements made between
states with the intention that they should be
binding under international law. They may be
multi-lateral or bi-lateral. Treaty making involves
two stages viz; a treaty is signed by states with a
later ratification date. Binding Environmental
treaties play a crucial role in establishing the law.
Cont…
 International Custom or Customary International Law
 International Custom consists of two elements: state
practice and opinion juris (belief that the behaviour is
required by law). Article 38 of the statute of the
International Court of Justice provides that the Court
should apply international customary law as evidence
of a general practice accepted as law . This evidence
can be found in the actual behaviour of the states
coupled with the belief that the behaviour is required
by law – opinion juris.
 Elworthy, S. and Holder, J, Op. Cit, at pg 131
Cont…
 State practice can be evidence in several sources,
including: ratification of treaties; participation in
treaty negotiations and other international meetings;
national legislation; the judgments of national courts;
votes and other acts in the UN General Assembly;
Acts in other International Organizations, statements
by ministers and diplomats; state pleadings and; level
of tolerance are some from a wide range of items.
The state practice to contribute to the development
of international law it has to be general that means a
widespread and representative participation even
without a considerable period of time.
Cont…
 Opinio juris requires evidence that a state has
acted in a particular way because it believes it was
required by the law. It consists of expression of
beliefs regarding acts of varies international
organizations; statements made by representatives
of the states and procedure in ratifying the
treaties. The view of Sir Hersch Lauterpacht
‘regarding all uniform conduct of governments as
evidencing the opinion juris except when it is
shown that the conduct in question was not
accompanied by any such intention.’
Cont…
 An example of customary international
environmental law is the duty of the state to take
adequate steps in order to prevent, reduce and
control sources of pollution within its jurisdiction
which cause harm in the territory of another state.
See the Trail Smelter case. In this case Canada was
ordered to pay damages to the US and to establish a
regime for controlling future emissions from a
smelter whose fumes had caused harm across the
border.
 United States of America v Canada, (1939) 33
American Journal of International Law at p.182
Cont…
 In the case of Nicaragua the Court of Justice, clearly
provided that treaty reservation could not displace
customary international law. The Court stated that:
 “The Court has now to turn its attention to the question
of the law applicable to the present dispute. In
formulating its view on the significance of the United
States multilateral treaty reservation, the Court has
reached the conclusion that it must refrain from applying
the multilateral treaties invoked by Nicaragua in support
of its claims.”
 Case Concerning Military and Paramilitary Activities In
and Against Nicaragua (Nicaragua v United States) 1986
ICJ 14
Cont…
 The court went further providing that:
 “It will therefore be clear that customary

international law continues to exist and

apply, separately from, international treaty
law, even where the categories of law have an
identical content.” See Elworthy, S. and
Holder, J, Op. Cit, at pg 131
Cont…
 General Principles of Law Recognize by Civilized
Nations
 Principal of good faith and equity are commonly
known general principles or municipal laws
accepted by civilized nations. Good faith which
governs exercise of rights to ensure that proper
balance is struck when exercising such rights
by the parties. ICJ’s acceptance of these into
source of international law is to fill in certain
gaps which may appear during a trial.
Cont…
 ICJ’s reliance of these principal in the past is
clear from its decisions and advisory
opinions, the ECJ has also relied on these
principles in the Case EC Commission v
Belgium [1993] and generally when
complying with treaty obligations each state
parties are obliged to observe good faith.
Cont…
 The application of equity in the international
law is not been defined but expressed widely
in the treaties. However its application needs
to be understood with respect to the
objective of a particular treaty or agreement
until an authoritative definition is drawn.
 General principles include restitution in
integrum and state responsibility have
recognized in treaties and judgments.
Cont…
 These principles of law recognized by the
civilized nations considered when they can be
proved authoritatively. Given definition in a
convention will be binding between the State
parties who are signatories to that particular
convention however this is not always so,
elements of customary international law
could also be used to prove that the parties
are binding although they are not signatories
to the said convention.
Cont…
 Subsidiary Sources
 The primary sources are the judicial decisions

and writings of publicists

Cont…
 Other than ICJ there are other international courts
and tribunals. The decisions of European Court of
Human Rights (ECHR), WTO Appellate Body,
International Tribunal of Law of the Sea (ITLOS), The
first Optional Protocol to International Covenant for
Civil and Political Rights(which allows individuals,
whose countries are party to the ICCPR and the
protocol who claims their rights under ICCPR have
been violated who have exhausted domestic
remedies to submit writern communications to the
UN human rights committee), Trial Smelter
Arbitration and Pacific Fur Seal Arbitration.
Cont…
 The contributions made by the highly
qualified publicists working through
International Law Association, The World
Commission on Environment and
Development and the International Union for
Conservation of Nature (UCN).
Cont…
 International Agreements (Treaties) and Enforcement
Practices
  International law seldom stipulates how a
state should implement its provisions, leaving it up
to the state to choose the appropriate procedure for
the execution in the domestic plane. Incorporation of
International Law is the process by which
international agreements become part of municipal
law of sovereign states. States follow different
processes of incorporating international law into
their domestic legal system, depending on their
constitutional provisions in this respect.
Cont…
 Thus, the process of implementation of
international law at national level varies in
different countries. The divergent State
practices pertaining to incorporation of
international law into municipal law have
been explained by two schools of law –
monist and dualist.
Cont…
 These are dualism and monism. Dualists
regard international and municipal law as
separate entities, and municipal law can only
apply international law once it has been
incorporated into the legal system of the
country. The incorporation of international
agreements into the national legal system can
be achieved by formal adoption through a
parliamentary procedure, through other
political acts, or given effect by the national
courts
Cont…
 Thus, an unincorporated treaty has no formal
standing in domestic law. Also, if international law
conflicts with the domestic law, then domestic law
will prevail. However, this does not necessarily mean
that most states would disregard international law.
In reality, what matters is the domestic legislations,
the attitude of the domestic courts and the
administrative practice, which is often inconsistent
and ambiguous. Monists regard international and
municipal law as parts of the same legal system.
According to them municipal law is subservient to
international law.
Cont…
 A treaty may have incorporated in to its own text
enforcement provisions, such as arbitration of
disputes or referral to the ICJ. However, some
treaties may not expressly include such
enforcement mechanisms. Especially in situations
where the international law in question is not
explicitly written out in a treaty, one can question
how this unwritten law can be enforced. In an
international system where there is no overarching
authoritative enforcer, punishment for non-
compliance functions differently.
Cont…
 These may include economic sanctions, such
as restrictions on trade, on South Africa in
the 1980s to force that country to end the
practice of racial segregation known as
apartheid.
Cont…
 Environmental treaties, like other international
treaties, usually rely on voluntary compliance with
their obligations, rather than on coerced compliance.
Article 26 of the Vienna Convention on the Law of
Treaties of 1969 lays down the rules regarding
compliance of treaties. The Article provides for the
principle of pacta sunt servanda. The principle
requires the states parties to the state to
perform/observe the treaties in good faith. Further
Article 27 prohibits from enacting domestic
legislation to defeat the principles of the convention
or treaty it has ratified.
Cont…
 Tanzania follows dualist schools. Article 63(3) (e) of
the URT Constitution provides for the requirement of
ratification and domestication of international law
principle in the municipal law. It states that the
National Assembly may deliberate upon and ratify all
agreements and treaties to which the United
Republic is party and the provisions of which require
ratification.
 Section 179 of the Environmental Management Act
2004 (Act No. 20 of 2004) provides for mechanism
for the domestication of multilateral environmental
agreements into municipal law. It provides:
Cont…
 Section 179 (1) Where the United Republic is a
party to an international or regional agreement
concerning the management of the
environment, the Minister, shall, in accordance
with the relevant sector Ministry.
 Initiate and prepare legislative proposal for
consideration by the relevant Ministry for the
purpose of implementing those agreements,
and
 Identify appropriate measures necessary for the
implementation of those agreements.
Cont,,,
 Where a sector Ministry is involved in
negotiation of an international agreement on
matters relating protection and management
of environment, the sector minister concern
shall, prior to submission for ratification by
the National Assembly communicate to the
Minister on the substance of the agreement
with a view to assess the likely impact on the
environment.
Cont…
 (3) The Minister shall create mechanism to
work closely with international and regional
communities to contribute towards peaceful,
healthier and better global environment for
the present and the future generation.
 (4) The Director of the Environment shall

keep a register of all international

agreements concerning the management of
the environment to which the United Republic
is a party.
International Environmental Law
Principles
 The development of International environmental law has
included the statement and adoption of a number of
important guiding principles. These principles are
included in a number of multilateral environmental
agreements. They play important roles in international
environmental law, which itself are one of the most rapidly
evolving areas of public international law. They can
indicate the essential characteristics of international
environmental law and its institutions, provide guidance in
interpreting legal norms, constitute fundamental norms,
and fill in gaps in positive law. Principles also appear in
national constitutions and laws; and they are referred to
in, and influence, international and national jurisprudence
Cont..
 . Today, almost all major binding and non-
legally binding international environmental
instruments contain or refer to principles in
the evolving environmental law.
 Kurukulasuriya, L. & Robinson, N. A., Training

Manual on International Environmental Law,

at pg 23, available at
http://www.unep.org/environmentalgovernan
ce/Portals/8/documents/training_Manual.pdf
, last retrieved on 5th January, 2019.
Cont…
 International environmental principles include:
◦ Sustainable development.
◦ Sovereignty over natural resources.
◦ Precautionary Principle.
◦ Polluter Pays Principle.
◦ Intergenerational Principle/Equity.
◦ Intra-generational Principle/Equity.
◦ Protection of cultural and Natural Heritage.
◦ Doctrine of Public Trust.
◦ Principle of Common but Differentiated
Responsibilities.
Cont…
1. The Principle Of Sustainable Development
 It is the principle acknowledged at the
earth’s summit in 1992 in Rio Declaration
 It provides that in the use of environmental
resources there must be some care taken
to make sure that the health of the living
organisms are of such quality that sustains
and are maintained for future generations.
Cont…
 Section 7 of the Environmental Management
Act, 2004 provides for the aspect of
sustainable development.
 Section 3 of the EMA articulates the principle

of sustainable development.
 It refers to the development that meets the

needs of the present generations without

compromising the ability of future
generations to meet their own means.
Cont…
 Sustainable development implies the need to
reconcile values of environmental and values of
development by making sure that in decisions
making at all levels take account of environmental
and development concerns.
 Sustainable development implies, then, that the
supply of and health of the natural resources are
not compromised, and that humans do not suffer as
a result of development efforts.
 Thus, a healthy environment and productive
development must go hand in hand so that
development is sustainable.
Cont…
 In conclusion, the principle of the
sustainable development has
increasingly been recognized at both
their international and national
jurisdictions. The principle emphasize
on the following:
A) The need to take into account
concerns for present and future
generations
Cont…
B) The acceptance of the limits that
is based on the use and
exploitation of environmental
resources.
C). The need to integrate
environment and development
concerns in environmental planning
Cont...
2. The Principle Of Sovereignity Over Natural
Resources
 This principle was made on 1952 UN. General

Assembly and was re-emphasized in 1972.

 It states that states have sovereign right over

their natural resources in exclusion of all

other states.
 However it should not use it to affect other

states.
CONT…
 sections 5(3), 7(3) and 8 of the EMA cater for
this principle of sovereignty over natural
resources. Also s. 4(1) of LA, 3(1)(b)
 Constitution of the URT in Article 9(c) and 27

on the directive principle to ensure that

public affairs are conducted in such manner
that ensure national resources and heritage
are harnessed, preserved and applied to
common good; as well as duty to safeguard
the natural resources.
CONT...
3. Precautionery Principle
 This principle requires preventing or

rejecting development project in

absence of scientific evidence of the
environmental harm that project could
cause.
 It is also reflected under ss. 5(3), 7(3)

of EMA
Cont…
 The basis of the PP is found under Principle
15 of the Rio Declaration which states that:-
“In order to protect the environment, the
precautionary approach shall be widely applied
by States according to their capabilities. Where
there are threats of serious or irreversible
damage, lack of full scientific certainty shall
not be used as a reason for postponing cost-
effective measures to prevent environmental
degradation.”
Cont…
 The principle implies that there is
a responsibility to intervene and
protect the public from exposure
to harm where scientific
investigation discovers a plausible
risk in the course of having
screened for other suspected
causes.
Cont…
 The protections that mitigate
suspected risks can be relaxed
only if further scientific findings
emerge that more robustly
support an alternative
explanation.
Cont…
 PP traces its origin in the mid 1980s but it
had been applied in Germany as traditional
environmental law. In Germany there existed
agreements where the parties were called
upon to conduct themselves in a manner
where the scientific findings were adopted to
come to an agreement.
Cont…
 At this point in time the emphasis was to
ensure that the best scientific evidence
available will be applied. Bonn Convention
1979, Article III (2) and X (1) as well as the
preamble to the Wild Heritage Convention
exemplify the necessity of the PP.
Cont…
Cont…
 One of the first international instruments that
make reference to precautionary principle is
Organization for Economic Cooperation and
Development 1972.
 Today the principle is reflected in a number

of international law instruments e.g. Baltic

Sea Convention 1992; the Oil Pollution
Preparedness Convention, 1990 and the
Industrial Accident Convention, 1992.
CONT...
4.Polluter Pays Principle
 This principle requires that the cost of

pollution must be met by person

responsible for causing the said
pollution
 See ss. 5(3) and 7(3) as well as s. 3 of

EMA
Cont…
 The principle basically demands for the
person who is in charge of the polluting
activities to be financially responsible for
the damage he/she causes.
 Some commentators, however, have
underlined that the principle has merely a
rhetoric value because most of the polluters
will be able to pass the costs of pollution
onto customers
Cont…
 Polluter pays principle is provided under
principle 16 of the Rio Declaration. The
principle states that,
 “National authorities should endeavour to
promote the internalization of environmental
costs and the use of economic instruments,
taking into account the approach that the
polluter should, in principle, bear the cost of
pollution, with due regard to the public interest
and without distorting international trade and
investment.”
Cont…
 An early version of the polluter pays principle was
developed by the Organization for Economic
Cooperation and Development (OECD) in the 1970s
in an effort to ensure that companies would pay
the full costs of complying with pollution control
laws and were not subsidised by the state.
 The principle was adopted by the OECD as an
economic principle and as the most efficient way of
allocating costs of pollution-prevention-and
control measures introduced by public authorities
in the member countries.
Cont…
 It was intended to encourage rational use of
scarce resources and to avoid distortions in
international trade and investment. It was
meant to apply within a state, not between
states. As a goal of domestic policy, it has
been realized only partially in practice
Cont…
 The polluter pays principle has also been increasingly
accepted and applied at national level including in statutes in
many countries in the developing world, and in their national
supreme courts such as in South Asia, Africa and elsewhere in
the world.
 In the case of Indian Council for Enviro-Legal Action v. Union
of India, the respondents operated chemical factories without
the requisite licences and had not installed equipments for
treatment of the highly toxic effluent which they discharged
and hence causing pollution to the environment and people in
general (VILLEGERS RIGHT TO LIFE HAS BEEN INFRINGED)
 The Court observed that according to rule laid down in the
Oleum Gas Leak Case once the activity carried on is hazardous
or inherently dangerous;
Cont…
 the person carrying on such activity is liable
to make the loss caused to any other person
by his activity irrespective of whether he took
reasonable care while carrying on his activity.
Why? The enterprise alone has the resources
to discover and guard against the hazards
and not the victims i.e. the damage was
foreseeable to the enterprise (1996) 3 SCC
212, UNEP Compendium of Judicial Decisions,
Vol. I at pg 394
Cont…
 The court observed further that such liability
is not subject to exceptions under the rule in
Rylands v. Fletcher i.e. apart from proof of
damage to the plaintiff by the act of
negligence of the defendant; there are
foreseability and non-natural use of land.
Cont…
 The court went on observing that the
question of liability of the respondents to
defray the costs of the remedial measures
could also be looked at another angle, viz.
Polluter Pays Principle, according to which the
responsibilities for repairing the damage was
that of the offending industry. The court held
that;
Cont…
 respondents were absolutely liable to
compensate for harm caused by them to the
villages in the affected area, the soil and to
the underground water and hence they were
bound to remove the sludge and other
pollutants lying in the affected area and also
to defray the cost of the remedial measures
required to restore the soil and underground
water source
Cont...
5.The Principle Of Intergeneration And Intra
Generational Equity,
 Intergenerational equity focuses on the rights of

future generation.
 Intragenerational focuses on the rights of
present generation
 Under this principle each generation has the

right to inherit the same diversity in natural and

cultural resources enjoyed by the previvious
generations as to equitable access to use and
benefits of these resources.
Cont...
 It
requires the present generation
to make sure that in exercising its
rights to use of environmental
resources environment is
maintained for both present and
future generation.
CONT…
 Each generation has the right to inherit the
same diversity in natural and cultural resources
enjoyed by previous generations and to
equitable access to the use and benefits of
these resources. At the same time, the present
generation is a custodian of the planet for
future generations, obliged to conserve this
legacy so that future generations may also enjoy
these same rights.
 In this way, intergenerational equity extends
the scope of social justice into the future.
CONT…
 Generally, in intergeneration equity the
present generation must make sure that in
exercising its rights to the use of the
environmental resources the products of the
environmental activity is maintained or
improved for the future generations.
Cont...

Oposa v. Factoran

The court said;

Cont...
 We find no difficult rulling that the minors
can for themselves , for their generations
and for the succeeding generations file a
class suit their personality to sue on
behalf of the succeeding generations can
only be based on the concept of
intergeneration and intragenerational
responsibility so far as their right to life
and healthful ecology are concerned.
CONT…
 The court here meant that without the
principle of intergenerational equity the
children could have no locus. On appeal, the
Supreme Court overturned the decision
though agreed that the minors had the locus
standi but it disagreed to cancel the licences.
CONT…
 In Tanzania, paragraph 2 of the National
Environmental Policy provides for
intergeneration equity.
 The wildlife conservation policy 1970 quotes
J.K. Nyerere in 1961 when opening the
conference of the coming into force of the
African Convention “in accepting the trusteeship
of our wildlife we solemnly declare that we will
do everything in our power to make sure that
our children and grandchildren will enjoy this
rich and precious heritage.”
Cont…
Section 5(3) and s. 7(3)(a)
and (j) deal with the
principle of
intergenerational and
intragenerational equity.
Cont…
 Principle 3 of the 1992 Rio Declaration provides for
the principle of intergenerational equity. It states
that,
 “The right to development must be fulfilled so as to
equitably meet developmental and environmental
needs of present and future generations”;
 Generally, in intergeneration equity the present
generation must make sure that in exercising its
rights to the use of the environmental resources the
products of the environmental activity is maintained
or improved for the future generations.
Cont...
6.The principle of cooperation and common
but Differentiated Responsibilities
It basically has two elements;
 Responsibility of state to protect the
environment at national, regional and
international level.
 Necessity to take into account the different

circumstances especially with each countries

distribution and involvement in making of a
particular environmental crisis.
Cont…
 Principle 7 of the Rio Declaration of 1992 states that,
 “States shall cooperate in a spirit of global
partnership to conserve, protect and restore the
health and integrity of the Earth’s ecosystem. In view
of the different contributions to global environmental
degradation, States have common but differentiated
responsibilities. The developed countries
acknowledge the responsibility that they bear in the
international pursuit of sustainable development in
view of the pressures their societies place on the
global environment and of the technologies and
financial resources they command.”
Cont…
 Principle 7 can be divided into two parts:
 (1) the duty to cooperate in a spirit of global

partnership; and
 (2) common but differentiated responsibilities
Cont…
 In its generality the principle calls for cooperation
between states in addressing environmental issues but
on the same time takes in to account difference
circumstances, particularly in each state's contribution
to the creation of environmental problems and in its
ability to prevent, reduce and control them.
 States whose societies have in the past imposed, or
currently impose, a disproportionate pressure on the
global environment and which command relatively
high levels of technological and financial resources
bear a proportionally higher degree of responsibility in
the international pursuit of sustainable development.
Cont…
 According to the concept of common but
differentiated responsibilities, developed countries
bear a special burden of responsibility in reducing
and eliminating unsustainable patterns of
production and consumption and in contributing
to capacity-building in developing countries, inter
alia by providing financial assistance and access to
environmentally sound technology. In particular,
developed countries should play a leading role
and assume primary responsibility in matters of
relevance to sustainable development.
Cont…
 A number of international agreements recognize a
duty on the part of industrialized countries to
contribute to the efforts of developing countries to
pursue sustainable development and to assist
developing countries in protecting the global
environment.
 Article 4 of the 1992 United Framework Convention
on Climate Change (UNFCCC) recognizes the special
circumstances and needs of developing countries
and then structures the duties and obligations to be
undertaken by states accordingly.
Cont…
 The idea of common but differentiated
responsibilities and respective capabilities is stated
in Article 3 of the UNFCCC as the first principle to
guide the parties in the implementation of the
Convention.
 See also Articles 5 & 6 of the 1994 Desertification
Convention, Article 26 of the 1996 Protocol to the
Convention on the Prevention of Marine Pollution by
Dumping of Wastes and other Matter of 1972 and
the fourth preambular paragraph of the 2001
Stockholm Convention on Persistent Organic
Pollutants.
Cont…
 Basically, the principle has two main
elements:
 Responsibility of state to protect the
environment at national, regional and
international level.
 Necessity to take into account the different

circumstances especially with each countries

contribution and involvement in making of a
particular environmental crisis.
Cont…
 7.The Principle Of Public
Participation
 this principle is covered by
section 5(3) and 7(3) (e) of EMA.
 It requires that public be involved

on matters relating to
environmental management and
protection like EIA e.t.c
Cont...
 Also section 178 covered in part XIV
Provide for the public participation in
environmental issues.
 It is more pronounced in EMA than in

Kenya and Uganda as well as Zanzibar

which confine public participation to
the EIA only.
8. Protection of cultural and Natural
Heritage
 Cultural heritage comprises of the history
that is found in tradition which members of
that society identify with. Also this culture is
handed over from one generation to another.
It is reflected in various ways e.g. buildings
(structures), literary works, rocks, paintings
or sculptures.
Cont…
 Cultural heritage is part of the non living
environment and it is also protected by MEAs.
There is a Convention Concerning World
Culture and Natural Heritage adopted within
the framework of United Nations Scientific
and Cultural Organization (UNESCO) in 1972.
This was the first international environmental
instrument that recognized the importance of
the global community in the management of
natural resources.
Cont…
 The preamble defines culture and heritage; article
1 recognises three categories of the culture and
heritage
 Monuments (a statue, building, or other structure
erected to commemorate a notable person or
event/ a structure or site of historical importance
or interest.)
 A group of buildings (means architecture or
places in landscape of outstanding universal value
from point of view of science, art and history)
 Sites
Cont…
 Article 2 stipulates Natural heritage to mean
natural features either physical or biological.
Also geological and physical formation which
have a habitat geological and physical
formation which have threaten species of the
wildlife and plants from the point of view of
science and conservation.
Cont…
 Article 4 provides for the need to preserve
culture for the future generations. By year
2004 there were 180 states that were part to
the convention. Tanzania is part to this
convention, it ratified in August 2, 1977 and
the following have been included:-
Cont…
 Serengeti national park 1991
 Selous Game Reserve 1982
 Kilimanjaro national park 1987
 The ruins of Kilwa Kisiwani 1981 –cultural site
 The ruins of Songo Mnara 1981
 Ngorongoro Conservation Area 1968
 The Stone Town 2000- cultural site
 Kondoa Rock-Art Site (2006)- Cultural site
Cont…
 All these are natural heritage save for three
which are cultural sites. There are other MEAs to
include:
 The Archaeological Heritage Convention 1969
and Benelux Convention on Nature Conservation
and Landscape Convention 1992 which came
into force on 1993.
 On 1st February 2006, the International Criminal
Court sentenced one of the Serbs war lords inter
alia, for destruction of Dubrovnik protected
under world cultural convention
Cont…
 In Tanzania the National Antiquities Act, 1964 as
amended in 1979 in its preamble as well as Section 6
deals with the powers to declare monuments.
Currently monuments in Tanzania are:
 Askari Monument which has inscription of words: To

the memory of African native troops who fought and

the carriers who……………. And all other men who
died……
 Clock tower (Samora) December.

 State House

 Karimjee Hall

 Ocean Road Hospital etc

Cont…
 In Uganda there are also some antiquities.
 Gwindi Impenetratable National Park 1994
 Ruwenzori National Park 1994
 The Tombs of the Baganda Kings at KASUBI
 In Kenya, the Environmental Management and
Coordination Act, 1998 provides in its section 53 that
the minister for environment may declare traditional
interests of the local communities who are
customarily resident within the lake shore, wetland,
coastal zones or river bank to be protected interests
 Visit also; visit: www.unesco.org.
9. Doctrine of Public Trust
 The origin of the doctrine of public trust is
traced back to 16th Century. Most scholars
identify the Justinian code of sixth century as
the genesis of the public trust doctrine - the
doctrine of res communes which claims that
some things are ‘common to mankind - the
air, running water, the sea, and consequently
the shores of the sea [and] the right of fishing
in a port, or in rivers, is common to all men’
Cont…
 The title to these essential resources was vested in the state,
as the sovereign, in trust for the people. Res communes were
excluded from private control and the trustee was charged
with the duty of preserving the resources in a manner that
made them available for certain public purposes.
 Today, the concept that certain resources are common to all is
prevalent in such diverse areas as the open sea, wildlife,
parks, historic monuments, and the electromagnetic
spectrum.
 Further the concept is recognised in international, regional
and national instruments Common property resources are
those resources not controlled by a single entity and access to
which is limited to an identifiable community of individuals or
states
Cont…
 No one user has the right to abuse or dispose of
the property. Any dealing with the property has
to take into account the entitlements of others.
Besides, users of common property share rights
to the resource and are subject to rules and
restrictions governing the use of those
resources. See Kameri-Mbote, P., ‘The use of the
Public Trust Doctrine in Environmental Law’, 3/2
Law, Environment and Development Journal
(2007),at pg. 198, available at http://www.lead-
journal.org/content/07195.pdf
Cont…
 Public Trust Doctrine, a cornerstone of modern
environmental law, relates to the ownership,
protection and the use of essential natural and
cultural resources.
 It holds that certain natural resources are held
by the sovereign in trust and on behalf of all the
citizens because of their unique characteristics
and central importance.
 This follows the realisation that certain assets
are inherently public and not subject to
ownership by either the state or private actors
Cont..,.
 It relates to the ownership, protection and use of
essential natural and cultural resources, serving as
a check against allocation mistakes by the
government with regard to public natural resources.
 It has been used to guarantee access to bodies of
water, protect recreational lakes and beaches,
wildlife preserves and even the air.
 The public trust doctrine ensures that
governmental action can be checked to ensure that
it benefits the citizenry with regard to key
environmental resources.
Cont…
 The English House of Lords, in 1865 defined the
concept of public trust in the case of Gann v. Free
Fishers of Whitstable.
 The House of Lords held that the bed of all navigable
rivers here the tide flows, and all estuaries or arms of
the sea, is by law vested in the crown. But this
ownership of the crown is for the benefit of the subject,
and cannot be used in any manner so as to derogate
from, or interfere with the right of navigation, which
belongs by law to the subject of realm.
 House of Lords, 3 March 1865, 11 E.R. 1305 (1865) 11
H.L. Cas. 192. Cited in Kimeri-Mbote, P., Ibid.
Cont…
 The doctrine of public trust is used to
prohibit the government from conveying
public resources to private ownership.
 In the case of Illinois Central Railroad v.

Illinois, the state legislature had transferred

ownership of the nearly the entire waterfront
of Chicago (about 1,000 acres) to the
railroad. Four years later, a new legislature
sought to revoke the transfer but the railroad
challenged the revocation.
Cont…
 The United States Supreme Court upheld the
revocation, returned the land to the state and
stated as follows distinguishing this land as
different in character from that which the
state holds in lands intended for sale:
 Supreme Court of the United States, 146 US

387 (1892).
Cont…
 The court stated that;
 “It is a title held in trust for the people of the

state that they may enjoy the navigation of

the waters, carry on commerce over them,
and have the liberty of fishing therein freed
from the obstruction or interference of
private parties.”
Cont…
 The court went on further stating that:
 “The control of the state for the purposes of

the trust can never be lost, except as to such

parcels as are used in promoting the interests
of the public therein, or can be disposed of
without any substantial impairment of the
public interest in the lands and waters
remaining.”
Cont…
 In the case of MC Mehta v. Kamal Nath etal, the
minister granted land to the company which
diverted the river causing floods. The minister
called to appear before the Court. The Court
observed that certain resources like water and
air has significance in the society so the
company could not appropriate the water thus
the government had breached the trust.
 (1997) 1 Supreme Court Cases 388, See UNEP
Compendium of Judicial Decisions Vol.I at pg
259
Cont…
 In Kenyan case of Abdikadir Sheikha Hassan
& Others V. Kenya Wildlife Service,
 KWS wanted to remove the animals to
another area. People went to court. The court
said that only mineral and oil were excluded
from ownership, the KWS was statutorily
mandated to keep animals but not to ship.
 (1996), High Court of Kenya, Case No.

2059/1996
Cont…
 In another Kenyan case of of Peter Waweru v. The
Republic, the High Court of Kenya held that
 In the case of land resources, forests, wetlands
and waterways … the Government and its
agencies are under a public trust to manage
them in a way that maintains a proper balance
between the economic benefits of development
with the needs of a clean environment’.
 High Court of Kenya at Nairobi, Miscellaneous
Civil Application No. 118 of 2004.
Cont…
 In Tanzania EMA mandates the government
organs to issue licences but when doing so
the public officers must consider the issue of
trust.
 See also section 4(1) of the Land Act, CAP

113 and the Village Land Act, CAP 114.

 Topic three
POLICY, LEGISLATIVE AND INSTITUTIONAL
FRAMEWORK FOR ENVIRONMENTAL & NATURAL
RESOURCES MANAGEMENT IN TANZANIA
General introduction
 Tanzania is a union between Mainland Tanzania
and Zanzibar. In the Articles of Union there are
list of issues which are to be dealt by the union
government (Union matters). These matters are
also reproduced in the schedule to the
Constitution of the United Republic of Tanzania
of 1977 as amended from time to time.
 Environmental issues are not union matters. This

means that each part of the union government

has its own laws dealing with environment.
Cont…
 The legal framework for Environmental
management in Tanzania includes the
Constitution of the United Republic of Tanzania
of 1977 as amended from time to time.
 Generally the constitution provides for the
protection of environmental and natural
resources.
 However this protection is not explicitly stated
i.e. not direct as there are no specific articles
providing expressly for right to safe and clean
environment.
Cont…
 There are certain provisions in the
constitution of the URT which could be
interpreted to mean the right to clean, safe
and descent environment.
 Indeed the courts in Tanzania have
interpreted articles of the constitution and
came up with the right to clean, safe and
descent environment.
Cont…
 As a result of linkage between human rights,
environmental law rights and constitutional
rights beginning in 1990s many countries of
the world put in place provisions in their
constitutions guaranteeing citizens to
environmental rights
Cont…
 Uganda, Mozambique, South Africa, Lesotho
and Malawi have specific provisions in the
constitutions dealing with environmental
protection.
 In other countries like Tanzania and Mauritius

do not have articles in the constitution but

these countries have environmental rights
embodies in the framework environmental
law
Cont…
 The constitution of Tanzania provides in article
14 for the right to life.
 Others include article 27 which deals with the
duty to protect natural resources as an
obligation to any citizen of Tanzania.
 Article 26 (1) provides for the duty to abide with
the laws including those relating to
environmental management and protection.
 Article 26(2) of the constitution deals with the
duty to take legal measures to ensure that the
constitution is followed
Cont…
 In Tanzania in the case of Felix John Mavika
and another v. DSM City Council, the court
stated that article 26(2) provides/reflects the
doctrine of public trust. This was a
mistake/wrong assumption by the judiciary.
Article 28(1) of the constitution is one
relevant in respect of the duty to protect the
land
Cont…
 In the case of Joseph D. Kessy v. DSM City
Council, the judge said that “article 14 of our
constitution provides that every person have
a right to live and the protection of his life by
the society. It is therefore a contradiction in
terms and denial of this basic right
deliberately to expose anybody’s life to
danger or what is environmentally monstrous,
to enlist the assistance of the court in this
infringement.
The Role of Constitutional Provisions in Environmental
protection

 Constitutional Rights in respect to

environmental management
 Chapter Two of the Constitution, article 7 and

9. In article 9(c) and (j) the sustainable

development principle is articulated. However
this part of the constitution is not enforceable
as per provisions of Article 7 though the
government must strive to achieve/maintain
the objectives.
Cont…
 The inclusion of the right to clean, safe and
healthy environment is a recent development
not only in constitutions but also in
international instruments. The first
instrument to have this right was the
African/Banjul Charter on Human and
Peoples‟ Rights, 1981; before that there was
no constitution with such provisions
Cont…
 . Uganda, Namibia, and South Africa have
such provisions in their constitutions. In
countries where such provisions are not
there, it developed from case law e.g. in India
but now they are contained in the
constitution after amendment.
Cont…
 The whole question of the right to public
participation in public affairs in article 21 has
both active and passive aspect. It includes the
right to be informed.
 Article 27 one can go to court i.e. access to

justice in order to protect the environment.

This is a right given to any person.
Cont…
 Also we have the right to association; It
includes the right to associate and form
organizations for protection of environment
in forms of Non Governmental Organizations
(NGOs), now known Civil Society. These are
like Lawyer’s Environmental Action Team
(LEAT), MPINGO.
Cont…
 Freedom of expression guarantees the right
to be informed. This accommodates the
principle of notification in international
environmental law in which one country with
environmental problem is required to
inform/notify other country. Article 18
Cont…
 When we are speaking of environmental law in
Tanzania, we also mean framework legislation
and sectoral/cross-sectoral legislations which
include Principal and Subsidiary legislation.
 The legislative regime in different countries is
different with respect to environmental
management. In some countries the
fundamental law of the land i.e. constitution sets
out the basis for environmental protection. In
other states/ countries the constitution does not
set the basis for the environmental protection.
Cont…
 Environmental law may also be:
 Sectoral oriented pieces of legislation, or
 Holistic pieces of legislation
Cont…
 Holistic legislation is further divided into
various types:
◦ Consolidated Environmental Management Act-
this is available in UK and Zambia. Actually these
have taken different scattered legislations and
put them in one act. In Zambia the laws for
Environmental Impact Assessment (EIA), Laws on
pollution etc were consolidated and put into one
volume law dealing with Environmental
management.
Cont…
 Codes (Normally Penal Codes)- These are found in
Continental Europe. In these Codes normally
everything is found. They are problematic
legislations i.e. people can not able to read the
whole voluminous legislation. This is not the legal
culture of Tanzania which is Anglo-Saxons.
 Framework Environmental Management Law – This is
dominant in East Africa. Tanzania has the Environmental
Management Act, 2004; Uganda has the National
Environmental Management Act; and Kenya has the
Environmental Management and Coordination Act.
Cont…
 These are designed to provide
complementarity between the framework
environmental management law and the
sectoral specific law. They are enacted to
provide:-

 General principles of management which must be

respected by all other legislations and constitution;
Cont…
 To provide coordination among sectors in their
implementations of the roles assigned to them;
 To provide for environmental management
tools/instruments;
 To provide forum of public participation and
enforcement. They co-exist with the sector
specific legislations, as EMA has not repealed
them.
Environmental Problems in Tanzania
 The National Environmental Policy of 1997,
under paragraph 11 lists six environmental
problems, viz;
 Land degradation;
 Lack of accessible, good quality water for

both urban and rural inhabitants;

 Environmental pollution
 Loss of wildlife habitats and biodiversity;
 Deterioration of aquatic system; and
 Deforestation.
Environmental Policy Framework

 A policy is a statement of beliefs, goals,

objectives, and recommendations on a
specific subject area.
 Policy offers direction of what the
government is intending to do in terms of
legislative action. It identifies problems facing
particular sector and
recommends/suggests/proposes ways to
combat the identified problems.
Cont…
 Legislations are usually tools for
implementing policies. For example, the
enactment of Environmental Management Act
of 2004 was preceded by the promulgation of
the National Environmental Policy of 1997
 Policies relevant to environment in Tanzania

include the National Environmental Policy,

1997, the National Wildlife Policy1998, the
Water Policy 2002, the Forest Policy and the
Mining Policy
 Sectoral and Cros-sectoral Legislations Relevant to
Environment
 Environmental issues cut across various sectors.
Therefore, there are various sectoral and cross-
sectoral laws which are relevant to environmental
management. These include Land Act, 1999 and the
Village Land Act, 1999; the Wildlife Conservation
Act, 2009; the Mining Act, 2010; the Marine Parks
and Reserves Act, Cap. 146 R.E 2002; the Forest
Act, 2002; the Water Resources Management Act
2009; and the Water Supply and Sanitation Act 2009
to mention few.
Cont…
 The Land Acts
 Under the Land Ordinance, there was Granted

Right of Occupancy and the Deemed Right of

Occupancy. The Granted Right of Occupancy
is now covered by the Land Act, Cap 113 of
the Laws of Tanzania and the Deemed Right
of Occupancy is covered by the Village Land
Act, Cap 114.
 Under the Land Acts, all land in Tanzania is
public land vested on the President as trustee
for Tanzanians as the beneficiaries. Why land
in Tanzania is public land? It is on historical
reasons that Tanganyika was a Mandate
Territory under the League of Nations, which
declared that land is a public land vested under
the League of Nations, and then under the
British rule, the land was vested to the
Governor. This public land is classified under
the Land Act, Cap 113 to include the following:
 1. General land
 2. Reserve land
 3. Village land
 The most important category for the
environmental management is the reserved
land. This is provided for under section 6(1)
of the Land Act
◦ The land falling under the Forests Act, 2002 so
here we deal with all reserves;
◦ All lands under the National Parks Act;
◦ All lands under the Ngorongoro Conservation
Area;
◦ Wildlife Conservation Act;
◦ Marine Parks and Reserves Act;
◦ Land designated under the Town Council
Ordinance;
◦ Recreational grounds under the Public Recreation
Act;
◦ Land within the natural drainage system e.g. rivers;
◦ Land under Land Acquisition Act for public
purposes;
◦ Land declared as hazardous land by the Minister
under the Land Act.
 Section 7(1) of the Land Act, provides for the
hazardous land. It includes mangrove
swamps area, wetlands (preserve water and
flood control), land designated for dumping
wastes, land within 60 meters from the river
bank, land on slopes exceeding certain
gradient, and land specified by appropriate
authorities because of its fragile nature.
 There are also conditions attached to the Right of
Occupancy under the Land Act. Some of these
conditions deal with environmental management.
 Under the Village Land Act, the hazardous land is

covered as well. These parcels of land under VLA

are known as hazard land, and the list is the
same as that provided for under the Land Act.
The VLA imposes conditions on use of customary
Right of Occupancy. It emphasizes that there
must be sustainable utilization of the land.
 LECTURE IV; ENVIRONMENTAL
IMPACT ASSESSMENT(EIA)
 Is a process which aimed at
identifying, predicting and evaluating
the impacts both positive and negative
of running a development activity
before that activity is being allowed to
be established.
 Section 3of EMA.
CONT...
 It also considers the project
alternatives and the available
mitigation measures to prevent or
reduce the negative effects and
increase or optimise positive impacts.
It is a continous intergral part of the
project.
Cont...
 Itis a tool towards achieving the
sustainable and equitable
development it is not against
development but it is a tool for better
development.
CONT...
 Under section 81 of EMA there is general
requirement of conducting EIA.
 Section 97 restricts/prohibits any
development project to take place
without conducting the EIA.
 Even after the issuance of EIA Certificate

NEMC may due to certain circumstaces

order a fresh EIA, example where;
Cont...
 1.There is a substantial change or
modification in the manner the project
operates
 2. There are environmental threats

which were not initially foreseen;

 3. In operation, the developer
overlooked to undertake the mitigation
measures thus need for the fresh EIA to
rectify the disturbed environment.
Cont...
 4• When the project was built there
were no cultural or religious impacts.
 Public participation in the EIA process

is articulated under Section 89 of the

EMA.
 It is the Minister responsible for
Environmental matters who is vested
with powers to approve the EIA in
Tanzania.
Cont...
 A minister’s decision may or not be
acceptable to either the project
proponent/investor or the public being
against the EIS because of the negative
impact the project may result.
 The aggrieved party is entitled to

challenge the decision through an

appeal to the Environmental Appeal
Tribunal s. 95 of EMA.
Who are involved in EIA
 Project proponent/ investor
 EIA Practitioner
 Reviewers
 Decision makers
 Public
Stages on EIA
 Registration; This is a screening stage
which determines whether the project
requires EIA or not.
 Scoping; proceeds where the first stage is

successiful and decision is made to conduct

EIA
 The major action in this stage is to identify

major environmental issues and areas of

impacts of the project and project
alternatives.
Cont...
 Impact prediction and evaluation;
Involves the assesment of impacts
 Example; if one builds a textile mills

what are likely to be the impacts eg.

Water pollution
 Then identification of mitigation
measures eg. Building a treatment
plant or look for alternatives available.
Cont...
 Environmental impact statement(EIS), In
this stage a report is prepared on findings
and EIS is submitted to the responsible
authorities.
 Review and decision making, This involves

public review and statutory review .

 The decision maker will decide on whether

the project should proceed or not. If the

project should proceed, under which
conditions.
Cont....
Environmental monitoring and auditing,
This involves daily and regular
monitoring.
 Then monitoring reports are prepared
 Note;EIA is an obligation to either a

developer or proponent of a project

undertaking;
see 3rdschedule to EMA
 LECTURE V
Environmental Management Plan(EMP)
 An EMP is a site-specific plan
developed to ensure that all
necessary measures are identified
and implemented in order to
protect the environment and
comply with environmental
legislation. See s. 49 of EMA
ENVIRONMENTAL AUDIT
 It is a systematic, objective evaluation
of facility activities for a finite review
period designed to:
 Verify compliance with environmental

regulations, internal policies, and

accepted practices.
 Evaluate the effectiveness of
environmental "management systems"
in place, and
Cont...
 Identify and assess any reasonably
foreseeable risks associated with
hazardous condition attributable to
our operations and prevent or mitigate
such risks.
 See section 101
ENFORCEMENT OF ENVIRONMENTAL
LAW
 Enforcement of environmental law comes in
where there is no compliance with the
requirements of the law.
 In Tanzania there are special people given the
task or mandated to enforce the environmental
matters, Among others are Environmental
Inspectors who are employees of NEMC.
 These inspectors are given enormous powers
to ensure that the law is complied as per
section 183 of EMA
CONT...
 They can also compound the offences, as per
section 194 of EMA ie. Fine the offender on the
spot. (when the offender accepts/admits the
offence and is willing to pay.)
 If the offender refuses the offence, he or she will
be taken to court.
 However Section 182(2) of the Act empowers the
Minister to designate public officers by name or
office to be environmental inspectors e.g. forest
officers, game wardens, government chemist,
District Health Officer, etc.
Several orders under EMA;
 1.Restoration order
 This order derives its basis on the Polluter

Pays Principle i.e. the one who polluted the

environment is ordered to restore the
environment to a state equally or near to the
state that was before the breach. Costs of
restoration and compensations may be
ordered.
Cont...
 2.Easement order
 An easement is a certain right to use the land

of another without possessing it. Section 156

of EMA provides for this order.
 Its aim is to further principles of
environmental management as provided in
the Act.
 The council may recommend to the Minister

for the creation of easement for the purposes

of environmental protection.
Cont...
 3.Conservation order as per section 161
 These are also issued on the burdened

land(restrictions apply). These may be issued

to conserve; flora and fauna, quality and flow
of water, preserve scenic view, control
migration for wildlife.
Cont...
 4.Preservation order
This is issued when someone is conducting
an activity or possesses something that if
escapes can cause danger to the
environment.
Where this has been issued, a person must
prepare a written emergency response plan.
Cont...
 5.Protection Order as per section 196
of EMA
 This is issued where an activity of an

adverse effect to environment and

public health. This is a stop order.
Cont...
 6. Emergence protection order as per
section 197
 This is issued where an activity of an

adverse effect to environment and

public health. This is a stop order.
Environmental Litigations and the
doctrine of locus standi

 Litigation is An action brought in

court to enforce a particular right.
The act or process of bringing a
case/lawsuit before the court of law.
 Locus standi is literally a place of standing, i.e.
a place to stand in court or a right to appear in
a court of justice on a given question.
AG V. Christopher Mtikila

 ‘The orthodox common law position

regarding locus standi no longer holds good
in the context of constitutional litigation in
that the notion of sufficient personal interest
over and above the interest of the general
public has more to do with private law rather
than public law; in matters of public interest
Court will not deny standing to a genuine and
bona fide litigant even where he has no
personal interest in the matter.”
CONT...
 So in environmental litigations even if one
has no personal interest on the matter can
bring the matter to the court on
environment.