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Environmental Rights Jurisprudence in Tanzania: A Review of Judicial Precedents

H. I. Majamba*

Introduction

This paper analyses the development of case law (judicial precedents) on environmental

law with a specific focus on environmental rights in Tanzania.1 It seeks to ascertain the

philosophy (jurisprudence) behind the rulings of authoritative courts in Tanzania. The

analysis has been confined to case law from authoritative courts on Mainland Tanzania,

the High Court and Court of Appeal, whose decisions become binding on lower courts

in the judicial hierarchy in accordance with the common law doctrine of precedent.2

The paper traces the development of environmental rights jurisprudence in the

Tanzanian judiciary to developments of principles of environmental protection that have

been established by the international community through international and regional

human rights instruments and consequently entrenched into the provisions of

Constitutions and environmental protection legislation of States. The paper's main

thesis is that the philosophy behind precedents on environmental legislation in Tanzania

has to some extent been influenced by the link between human rights and environmental

rights that are constantly evolving at the international level. The paper also argues that

the judiciary has not taken up opportunities that arise to develop the jurisprudence of

* LL. B (Hons) (Dar); LL.M (Queen's); Ph.D. (Northeastern), Lecturer in Law, University of Dar-es-Salaam (A different version of this paper was presented by the author at a Judicial Symposium on Environmental Law and Policy at Arusha, Tanzania in June 2003). 1 The term environmental law in this context refers to the body of laws that provide for the management, conservation and protection of living organisms and the atmosphere that supports their continued existence. 2 According to the Constitution of the United Republic of Tanzania, environment is not a Union matter. Zanzibar has a comprehensive environmental law - The Environment and Sustainable Development Act No. 2 of 1996

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environmental justice through case law. The discussion on the treatment of

environmental law cases by authoritative courts in Tanzania is preceded by some

reflections on developments at the international level in this realm.

Environmental Litigation at the International Legal Arena

Litigation on environmental issues at the international and national levels has increased

mainly due to international and national legal instruments and legislation recognizing

environmental rights. Judicial activism in interpreting provisions of the legal

instruments and the legislative provisions providing for environmental rights, even in

remote cases, has also greatly contributed to the development of environmental justice.

The role of counsel in promoting environmental law jurisprudence has also gained

tremendous pace.

The above developments in the field of environmental litigation have given rise to

different approaches in endeavors to seek environmental justice. In the process of this

development, environmental rights have been defined, re-defined and linked with

various discourses. Admittedly, courts have had to grapple with all these in diverging

circumstances and from different legal perspectives. A notable feature in the

development of environmental justice at the international level is the tripartite link

between constitutional guarantees, the human rights discourse and environmental rights

jurisprudence.

3

What has threatened the link, on the other hand, has mainly been the issue of standing

to sue (locus standi) with regard to people who seek the assistance of the court to

enforce environmental rights.

An analysis of the treatment of the tripartite linkage and the main threat to the link

would be appropriate at this juncture.

The Constitutional Link: Human Rights and Environmental Rights

The drive towards environmental protection by the international community has closely

been linked to the constitutional and human rights discourses. This link is premised on

the fact that human health and existence, (already recognized as a right to life by the

international Bill of Rights), to a large extent depends on a safe and healthy

environment. As a result of the symbiotic linkage to existence of life, the right to a

clean, healthy and safe environment has consequently been considered as a prerequisite

to ensuring the right to life. Mainly due to this linkage, there has been a drive to

incorporate the right to a clean and healthy environment in human rights instruments at

the global, regional and national levels.

Due to the linkage between environmental rights and constitutional and human rights,

the beginning of the 1990's witnessed the development of environmental rights with

states entrenching environmental rights provisions in their constitutions. In Africa, the

Constitutions of Mozambique, Uganda, Malawi, South Africa and Lesotho have

provisions that specifically provide for peoples' rights to a clean, safe and healthy

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environment.3 Some countries such as Malawi and Mauritius have entrenched

provisions guaranteeing citizens environmental protection in their national

environmental laws.

The inclusion of environmental rights in Constitutions and Human Rights instruments

has directed the judiciary to the importance of taking steps to address environmental

destruction. Where the government or private enterprises fail to abide by the

Constitutional mandate, they become susceptible to judicial scrutiny.

A number of court cases from several countries around the world reflect a new

paradigm in the approach to environmental litigation and the application of emerging

environmental rights and principles enshrined in a number of international

environmental law and human rights instruments.4

Even in cases where human rights instruments have not specifically provided for the

right to a clean and decent environment, courts have invoked the right. For example,

although the European Convention on Human Rights does not specifically make

reference to the right to an environment that is clean and healthy, case law from the

3 See UN Doc. E/CN.4/Sub2/1994/9 at p.17 for the list of states that have entrenched environmental rights provisions in their Constitutions. 4 See the Malaysian case of Kajing Tubek vs. Ekran Bhd et al [1996] 2 Malayan Law Journal where numerous plaintiffs successfully challenged the government's plan to develop a hydroelectric project, which would have adversely affected their environmental rights.

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European Court of Human Rights has recognized this right through a literal

interpretation of the right to life.5

Locus Standi

The phrase "locus standi" generally refers to a traditional common law prerequisite to

civil litigation. It provides that in order for a plaintiff to institute an action to prevent an

abuse of a public right, or to enforce the realization of a public duty, the plaintiff must

have a special interest to protect.6 Where harm is caused as a result of environmental

degradation, it is usually a multitude of people who are affected by such destruction.

Where a few of them seek to invoke the jurisdiction of the court to determine their

environmental rights, the issue of locus standi usually becomes a major stumbling block

to the realization of their rights.

Also, environmental litigation is usually costly as it may involve colossal amounts of

money due to the need, in most cases, to conduct scientific research to prove or

challenge environmental damage. As a result, most court cases would be instituted by

civil society organizations. These would also have to prove that they have a special

5 See Powell and Rayner; Judgement of 21/2/1990 Eur. Ct. H.R. Ser A Vol. 172; The Fredin Case Judgement 18/2/1991 Eur.Ct. H.R.Ser.A Vol. 192 and The Skanby Case Judgement 28/06/1990 Eur.Ct.H.R.Ser. A Vol 180-B 6 See Gouriet et al vs. A.G & Union of Post Office Engineering (1971) A.C. 435 (at 437).

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interest to go around the locus standi rule. Therefore, a strict application of the locus

standi rule would be detrimental to the enforcement of most environmental rights.

Courts have, however, broadened the rules on locus standi where a party seeks to

invoke its assistance in enforcing fundamental rights generally7 and specifically,

realizing the tripartite connection, they have been more flexible in the application of the

rule when enforcing environmental rights.8 It is not out of the ordinary, therefore, that

in the Bangladesh case of Mohiuddin vs. Bangaladesh9, the court held that an

organization dealing with environmental issues had locus standi where it instituted a

suit on behalf of numerous people on a matter of public concern.

It is therefore evident that the jurisprudence of courts towards environmental litigation

in other jurisdictions strongly suggests that judicial activism has played a significant

role in promoting environmental justice in the face of stringent procedural rules and

doctrines. In some cases, courts have been innovative and recognized the tripartite

connection between human rights, constitutional guarantees and environmental rights in

the course of deliberating pertinent issues on environmental justice.

Legal Protection of the Environment in Tanzania: An Overview

7 See for example R. vs. National Federation of Self Employees and Small Business Ltd [1982] A.C. 617 8 The Australian case of Building Owners and Managers Association Ltd. vs. Sydney City Council , 55 L.R.G. A 447 and the Dutch case of De Nieuwe's reported in Gervit Betlem, Standing for Ecosystems - Going Dutch [1995] C.L.J 153 at 158 9 Civil Appeal No. 24/1995 IBLC (AD) (1996) 189; 219, 1996

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The use of legal instruments to protect the diverse environmental resources of Tanzania

at the national level commenced during the colonial era with the enactment of a corpus

of colonial laws and policies. The independence government inherited most of these

laws and most are still in use to date. Colonial powers also entered into a number of

international agreements that have a bearing on the environment. The independence

government also adopted these.

Tanzania is now a party to several global treaties that have a bearing to the environment.

These include the United Nations Convention on Biological Diversity of 1992, Vienna

Convention for the Protection of the Ozone Layer of 1985 and the Montreal Protocol on

Substances that Deplete the Ozone Layer of 1987. Others include the United Nations

Convention on the Law of the Sea of 1982; the Basel Convention on the Control of

Transboundary Movements of Hazardous Wastes and their Disposal of 1989 and the

Convention on International Trade in Endangered Species of Wild Fauna and Flora of

1973.

In addition, Tanzania is also a party to regional agreements relating to the environment.

These include the Bamako Convention on the Ban on the Import into Africa and the

Control of Transboundary Movement and Management of Hazardous Wastes Within

Africa 1991, the Africa Charter on Human and Peoples Rights, 1981 also know as the

Banjul Charter. Its is also party to the Treaty Establishing the African Economic

Community, 1991 also known as the Treaty of Abuja and the Lome 1V Convention

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between African, Caribbean and Pacific Countries (ACP) on the one hand, and the

European Economic Community (EEC), on the other of 1989

The evolution of environmental law at the international plane has played a significant

role in Tanzania's effort to develop and introduce environmental protection legislation

and policies.10 Eleven yeas after the Stockholm Conference on Environment of 1972,

Tanzania's efforts to protect its environment became more pronounced with the

enactment of National Environment Management Act 1983.11 This Act established a

National Environment Management Council (NEMC) and entrusted it with the overall

mandate of overseeing compliance with rules and regulation governing environmental

management and protection.

The NEMC Act is currently the only legislation in Mainland Tanzania, which provides

for the management of the environment at a more holistic level.12 The NEMC is an

advisory body to the government on all matters pertaining to environment, but it relies

on ministries and local government to achieve its mission. It has no direct enforcement

powers, for example, to inspect and prosecute persons or corporations who violate the

provisions of the Act.

10 UNEP, Industries and Enforcement of Environmental Law in Africa: - Industry Experts Review Environmental Practice, 1998 p. 4 11 Act No. 19 of 1983 12 The government is in the process of enacting a comprehensive environmental law. The draft Comprehensive Environmental Law Bill is in the initial stages of approval in Parliament.

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Together with the NEMC Act, Tanzania's environmental legislation is also found in

segmented and sectoral statues on the regulation of the access to resources, for

example, land, minerals, water, forest, fisheries and wildlife. Other environmental

related legislation covers the regulation of waste disposed by industrial and

manufacturing plants, agriculture and fishing.

To ensure compliance, most environmental management legislation in Tanzania provide

for penalties in the form of imposition of fines and, or imprisonment. The sanctions

provided for relate to compensation, administrative penalties, and revocation of licenses

and, permits or other rights that are normally imposed by administrative agencies for

non-compliance with the condition of use of environmental resource as required by law

or by administrative agencies.

Environmental Litigation in Tanzania

In most trials concerning environmental rights, a conflict of interest arises between the

environmental rights of individuals and commercial interests. In theory, the conflict of

interest has already been balanced by the legislature, which has put in place legislative

provisions in favor of protection of environmental rights. The diverse and varying roles

of administrative authorities have also theoretically been considered. These have been

vested with the mandate of regulating activities that may cause harm to the

environment. The major role of courts in environmental litigation is to ensure that the

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interests of all these stakeholders, are as far as they reflect the will of the legislature,

are maintained.

The corpus of environmental legislation in Tanzania is relatively broad, segmented and

sectoral covering diverge aspects of environmental management and protection. Tracing

the relevant and applicable law to a fact situation therefore becomes relatively difficult.

The difficulty in locating the various pieces of environmental laws is further

compounded by the fact that few people (including lawyers) are aware of the existence

of the sectoral and segmented legislative provisions. The lack of a framework

environmental law for quiet sometime, which would have provided some guidance and

direction on various issues, has to some extent complicated the matter.

Unlike other jurisdictions, where parties to litigation can make recourse to Constitutions

for protecting their rights to clean and healthy environment in Tanzania, this is not the

case. The Constitution does not make direct reference to the right to a clean and healthy

environment. Prima facie, this scenario makes environmental litigation more complex.

The analysis on the development of jurisprudence on environmental litigation has been

confined to a few selected cases from the High Court and one from the Court of

Appeal.

11

As is the case in other jurisdictions, environmental litigation in Tanzania is also

conducted on the basis of common law principles, such negligence, nuisance, strict

liability and riparian water rights.13

Judicial Approaches to Protection of Environmental Rights

There are relatively few cases that deal with environmental rights at the High Court level.

This may be attributed to a number of factors. One of the factors is that environmental

law in Tanzania has not been fully developed in legal training institutions. As a result

most legal practitioners and members of the bench are therefore not fully conversant with

the subject. The other factor relates to a general lack of awareness among the public on

environmental law. Most people in Tanzania have not cultivated a culture of pursuing

their rights to a clean and healthy environment in courts of law.

Another explanatory factor for having few cases at the High Court level is because most

environmental related cases are instituted and settled at the level of District and Regional

Magistrates courts. At this level, however, the cases are not relevant for purposes of this

analysis, bearing in mind the limitations to which this paper has been confined.

The discussion on the approach of the judiciary in this analysis has also been confined

to a relatively unrestricted definition of the phrase "environment" that relate to citizens

rights to healthy, clean and uncontaminated surroundings. The analysis does not cover

13 Makaramba R.V and Macha, V.N. Development and Harmonisation of EIA Regulations and Guidelines Report to the United Republic of Tanzania on Environmental Law and Institutions in Africa 1997, p. 40

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cases that have a bearing to the protection of sectoral natural resources such as wildlife,

fisheries and forests since most cases in this category are normally criminal in nature. 14

The few civil suits that relate to sectoral natural resources legislation that exist have a

bias on enforcement of administrative tasks such as issuance of licenses and permits.15

The case studies that have been discussed in this part have been purposefully selected in

order to compare the environmental litigation jurisprudence of the Tanzanian judiciary

with the approaches of the bench in other jurisdictions. It follows, therefore, that the

focus of this part of the paper will analyze court cases that have dealt with the issues of

locus standi and the linkage between environmental rights, human rights and

constitutional law.

Perspectives on Locus Standi

Courts in Tanzania have generally addressed the issue of standing to sue in public and

private interest litigation and also with regard to environmental litigation. However, the

guarantee of standing to sue by individuals in endeavors to protect the interests of a

multitude of persons, for example in environmental litigation, is not expressly provided

for by the Constitution. The Bill of Rights provisions on the other hand are also, prima

facie, not very helpful, as there is no explicit provision for a litigant to invoke the

jurisdiction of the court in an attempt to safeguard public interest, for example

14 See for example R.vs Sefu Abdulla [1967] HCD 16; R. vs Magina [1967] HCD 69; R. vs Said [1970] HCD 197; and Halimoja Kavira vs R [1968] HCD 418 15 See for example, Tamale Kigezi vs District Administrator [1967] EA 1; Adecon Fisheries Ltd vs Director of Fisheries et al [1996] TLR 352 and GBL Associates Ltd vs Director of Wildlife et al [1989] TLR 195

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environmental protection.

Despite the apparent lacuna, the High Court has made some good progress in ensuring

that environmental rights are realized. It has held that citizens can exercise their rights

to sue in the public interest even where, they as individuals, do not have an express

interest in the suit.16 This innovation was pronounced in the renowned case of Mtikila

vs. Attorney General17 where the High Court of Tanzania held that:

“In matters of public interest litigation, this court will not deny standing to a

genuine and bona fide litigant even where he has no personal interest in this

(the) matter.”

The ruling in this case was an eye opener for public litigation generally but it had

implications for environmental rights in particular. The ruling laid a good foundation

for the case of Ballonzi v Trustees of C.C.M,18 where the High Court further developed

the jurisprudence on locus standi by holding that the rule of locus standi must be given

a wide interpretation when the issue at stake relates to human rights. When viewed

from the tripartite linkage between constitutional law, human rights and environmental

rights, then a powerful argument could at that time be made to the effect that the issue

of locus standi would not impede litigants from challenging environmental abuses in

court.

16 Matheson, K and Faraday, G; Environmental Justice: Who has the Standing to Sue the State? In Innovation: A Magazine of Science, Technology and the Environment Vol.6 No. 2 October, 1999 pp. 10 - 11 17 [1995] T.L.R 31

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Five years after the progressive development by the High Court, in Ballonzi's case, the

High Court had an occasion to settle the issue of locus standi with regard to litigation

on environmental rights. This was in the case of Felix Joseph Mavika et al vs. The Dar-

es-Salaam City Council.19 The applicants in this case sought an interim order to restrain

the respondents from dumping solid and liquid waste in Vingunguti area in the outskirts

of Dar-es-Salaam City. They argued that by doing so, the area would be polluted and

that lives of residents would be endangered.

The respondents raised an objection, alleging that the applicants did not have locus

standi. In rejecting the respondent’s objection the Court held that the applicants had

locus standi by virtue of section 26 (2) of the Civil Procedure Code and the public

interest doctrine provided for in Article 26(2) of the Constitution. The Court also took

cognizance of its prior decisions in the cases of Joseph Kessy and Festo Balegelye,

where although the issue of locus standi did not surface, the court had granted interim

injunctions to stop the dumping of waste in residential areas. (The two cases are

discussed in greater detail below and their citations are also provided).

Judicial Initiatives in Environmental Protection: An Analysis of Selected Cases

Side by side with the innovation on locus standi in public interest litigation, the judiciary

18 [1996] T.L.R 203 19 Civil Case No. 316 of 2000 High Court of Tanzania at Dar-es-Salaam

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in Tanzania, as is the case in other jurisdictions, has struggled to travel beyond the

provisions of the Constitution in an attempt to affirm the environmental rights of an

individual. In an effort to attain this, the courts have construed the Constitutional

provisions as having a basis for citizens to enforce compliance with the provisions of

laws relating to environmental protection and management.

This pronouncement was stated in the celebrated case of Joseph Kessy et al Vs. Dar-es-

Salaam City Council20 The Court in this case ordered the City Council of Dar-es-

Salaam to stop dumping solid waste in Tabata and to burn the solid waste it had

disposed off in the area. Briefly, the facts of this case were follows:

On the 1st day of September, 1989 residents (applicants) of Tabata, in the outskirts of the

capital city of Dar-es-Salaam, obtained an interim injunction from the High Court

restraining the City Council of Dar-es-Salaam from dumping garbage collected in the city

in their residential area.

The City Council filed an application requesting the Court to review its decision and set

aside the interim order the following day. Counsel for the City Council was suggesting to

the court that it was a lesser evil to pollute and endanger the lives of people in a specific

area of the City of Dar-es-Salaam, than to do so in the whole City! In rejecting the

Council's application, the honorable judge stated:

20 Civil Case No. 299 of 1988, High Court of Tanzania at Dar-es-Salaam

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“I will say at once that I have never heard it any where for a public authority, or

even an individual, to go to court and confidently seek for permission to pollute

the environment and endanger people’s lives regardless of their number. Such

wonders appear to be peculiarly Tanzanian but I regret to say that it is not given

to any Court to grant such a prayer. Article 14 of our Constitution provides that

every person has a right to live and to protection of his life by the society. It is

therefore a contradiction in terms and a denial of this basic right deliberately to

expose anybody’s life to danger or, what is eminently monstrous, to enlist the

assistance of the Court in this infringement.”

The court in this case gave a purposeful interpretation of the Constitution to include the

right to a safe and clean environment in the absence of a specific provision. This was

indeed a welcome development in the jurisprudence of environmental law.

However, it would have been more helpful had the court made reference to other

authoritative cases on the subject from other jurisdictions and principles of

environmental law developed by the international community. The court also made

some remote reference to the link between human rights and environmental law in this

case but an attempt should have been made to make reference to human rights

instruments that specifically address environmental rights especially those that Tanzania

has ratified. Instead the Court spent so much time delving onto the tortious and criminal

components of the case.

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The Court in this case should have emulated the Court of Appeal, which has, on

numerous occasions, made references to international instruments in an attempt to

develop the human rights jurisprudence. The case of Transport Equipment Limited et al

vs. Devram Valambhia,21 is a classic example. In this case, the court had to decide

whether to apply a constitutional provision that was at crossroads with an international

agreement, which Tanzania had signed and ratified. The court did not find any

difficulty "side-stepping" the constitutional provisions by applying the International

Covenant on Civil and Political Rights to grant bail to a judgement debtor, pending

appeal against an order of imprisonment in the execution of a decree.

The court in Kessy's case should also have taken the opportunity to develop

environmental rights further by using approaches that have been adopted and developed

by courts in other jurisdictions that show the tripartite linkage between constitutional

law, human rights and environmental rights.

For example, the court would have made a similar analogy to that made by the Court of

Appeal of Sri Lanka in the case of Environmental Foundation Ltd. v. Ratnasiri. 22 In this

case, the Court linked the environment with the right to life and held that appropriate

measures had to be made to protect the environment. In arriving at its decision, the Court

stated that since the government of Sri Lanka had ratified the Vienna Convention on the

Protection of the Ozone Layer, it was bound by obligations under the Convention.

21 [1995] TLR 161 22 Application No. 137 of 1996

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In view of its finding that "…[S]uch wonders (going to court to seek its permission to

pollute the environment) only appear to be peculiar to Tanzania," the court should have

gone a step further by demonstrating (by way of analogy with authoritative cases from

other jurisdictions), that courts in other countries have not sanctioned such behavior.

Another relevant case in the development of environmental law jurisprudence in

Tanzania is the case of Festo Balegele et al vs. the City Council of Dar es Salaam. 23 The

material facts of this case are similar to those in Kessy's case. However, the philosophy

adopted by the court in this case was different. The respondent had been dumping refuse

and waste collected from the City of Dar-es-Salaam near a residential site in an area that

was not designated in the City of Dar-es-Salaam's Master Plan as a dumping site. The

applicants further argued that the dumping of refuse in the area posed a health hazard and

was a nuisance to the residents.

The court agreed with the applicants' submissions and prohibited the City Council from

dumping refuse in the area.

For all intents and purposes, the Court rightly zeroed into the environmental aspect of the

case by observing that:

"It is a statutory duty of the City Council to stop nuisance (environmental pollution) and not to

encourage it…what the respondent (City Council) is doing now is not sanitary land filing as that

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process is understood but refuse dumping. The dumped refuse attracts flies and emits foul

smell…(causing an environmental health hazard)"

However, instead of pursuing the environmental pollution component of the case

further, the Court chose to accept the ultra-vires argument propounded by Counsel. It

held that the City Council's act was ulta-vires the Local Government (Urban

Authorities) Act, which provides for the manner of disposal of the collected refuse and

waste without endangering the health and lives of people. The court further held that

the act by the City Council was contrary to the City’s Master Plan, which took into

account the protection of citizens' right to a clean and healthy environment.

One notable feature of this case is the reference to the reasoning in Kessy's case only in

passing. The court did not take the opportunity to expound upon the reasoning in the case

of Kessy and thereby contribute further to the development of environmental law

jurisprudence.

The court should also have seized the opportunity to incorporate environmental law

principles and case law developed in other jurisdictions in its ruling as a way of

emphasizing the doctrine promulgated in Kessy's case. The court would also have

justified the reason for the artisan's of the City's Master Plan to accommodate

environmental order by way of analogy with international instruments and supporting

cases.

23 Miscellaneous Civil Case No. 90/1990, High Court of Tanzania at Dar-es-Salaam

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Counsel in this case was not very helpful as he dealt with technicalities judicial review,

citing numerous authorities on the doctrines of ultra-vires, certiorari and mandumus. The

Court ended up accepting the ultra-vires doctrine and in fact decided the case on the

principle.

The inability of Counsel to assist the Court is also evident in this case. Counsel cited a

case on violation of human rights decided by the Chancery Division in 1899 to support

his case but deviated by relying more on technical aspects of procedure. Counsel did not

make any attempt to guide the court in teasing out the tripartite link between human and

environmental rights after rightly pointing out the human rights dimension of the case.

Also Counsel did not make an effort of citing international instruments and persuasive

cases decided in other jurisdictions in support of the link.

The last case in our analysis of the development of environmental law/rights

jurisprudence is the decision of the Court of Appeal in the case of Sandhu Construction

Co. Ltd. v Peter M. Shayo.24 In this case, the respondent brought an action alleging

that the appellant’s activities in the immediate neigborhood caused excessive noise and

intolerable dust. He submitted that these were interfering with his enjoyment of his

residential house. The respondent had been successful at the High Court where the

court had observed, inter alia, that:

“Matters of public health are clearly more compelling than financial

24 Misc. Civil Application No. 28 of 1983 High Court of Tanzania at Arusha.

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considerations. Unlike financial loss, damage occasioned to health cannot

possibly be quantified…to re-open such order (and permit the activities to

continue) would thereby not only be precipitating a health hazard to the entire

neighborhood, but also subjecting the victims to nuisance in the form of noise

and dust.”

The Court of Appeal reversed the High Court's decision by applying technical rules of

evidence. Despite its finding that the dust discharged by the appellant was capable of

causing environmental harm, the Court maintained that since the respondent decided to

live in the area, he had consented to tolerating the acts of his neighbours in carrying out

normal and reasonable activities. The Court was of the opinion that the respondent "had

suffered usual and normal incidents attached to living in the area." The Court of

Appeal made no reference to any environmental rights case or environmental protection

principles developed by the international community. It decided the matter purely on

the basis of liability in tort.

Conclusion

The foregoing analysis reveals that judicial enforcement as a means of resolving natural

resources disputes and ensuring compliance in environmental laws is a relatively new

development in Tanzania.

To some extent, the environmental jurisprudence among the authoritative Courts in

Tanzania has grown progressively, developing along lines almost similar to those in other

22

jurisdictions. In some occasions courts have applied constitutional and human rights

principles to invoke the right to a safe and clean environment in the absence of express

Constitutional and legislative provisions.

One of the salient features in the development of environmental rights jurisprudence by

the Tanzanian Courts is their failure to seize the opportunities to expand the horizons of

environmental rights by applying principles developed by the international community

and using cases from other jurisdictions to justify their rulings.

The approach used by the authoritative courts in developing human rights jurisprudence

at a time when there was no Bill of Rights provisions in the Constitution does not seem to

recur in their rulings on environmental rights. However, with the progress already noted

in the two High Court cases it is expected that the judiciary will play a more positive role

in discharging its duties in such disputes.

The analysis also shows that the Court of Appeal waived the opportunity to contribute to

the development of environmental jurisprudence by preferring a more cautious approach.

Instead of seizing the opportunity to throw some light in the rather virgin area, the Court

of Appeal opted for setting aside the High Courts ruling, which apparently reflected some

aspects of developing environmental law jurisprudence. In its stead it applied the

traditional principles of the law of tort to resolve the matter. Save for the innovation on

locus standi, the contribution of the Court of Appeal of Tanzania in developing the

jurisprudence of environmental justice in Tanzania has not been insignificant.

23

The High Court on the other hand has made an effort. A plausible explanation for the

Court of Appeal’s seemingly inactiveness maybe due to the fact that many cases of

environmental justice decided by the High Court are not appealed against.

With the progressive increase in the rate of awareness on environmental rights and justice

among members of the legal profession (the bar and the bench) in Tanzania, a lot more

can still be achieved. More concerted efforts should, however, be made by creating more

awareness and sensitizing members of the bar and the bench on environmental rights

jurisprudence at the international and regional levels. The Council for Legal Education,

the Judiciary and the Bar Association, in collaboration of other major stakeholders in the

training of law in the country should be in the forefront in spearheading the efforts.

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SELECTED REFERENCES

Books

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Balls, S. Environmental Law 2nd Edition Blackstone Press Ltd London 1994

Faure, M.G, Enforcement Issues for Environmental Legislation in Developing

Countries. The UN University, INTECH, UNO/INTECH 1995

Garbult, J. Environmental Law: A Practical Handbook, Willey Chancery 1995.

Grubb, M. et al The Earth Summit Agreement: A Guide and Assessment An Analysis of

the Rio 1992/(UNCED) Earthscan Publication Ltd, London 1993

Hughes, D. Environmental Law, Butterworths – London 1992

Jewell, T. and Steele, J. Law in Environmental Decision Making; National European

and International Decision Making; Clarendon Press Oxford, 1998

Malcom, R. A. A Guidebook to Environmental Law, Sweet and Maxwell, London 1994

McGrecgory, G.I Environmental Law and Enforcement, Lewis Publishers, 1994

Njau, G. and Mugurusi, E. Towards Sustainable Environment in Tanzania, Friedrick

Nauman Stiffung, 1995.

Peter, C.M. Human Rights in Tanzania: Selected Cases and Materials RÜDIGER

KÖPPE VERLAG. KÖLN

UNEP, Industries and Enforcement of Environmental Law in Africa: Industry Experts

Review Environmental Practice, 1998

Mtaki, C.K. Legal Aspect of Environmental Protection in Tanzania: The Case of

Industrial Waste Management. Ph.D. Thesis, University of Gent. 1999 (Mimeo).

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Reports Papers and Articles

Kabudi, P.J. Legal and Institutional Framework for Sustainable Environmental

Management in Tanzania: An Overview: (Mimeo), 1999

Laura H. Environmentally Related Legislation in Tanzania, Division of Environment

Ministry of Natural Resources Tourism and Environment (MTNRE) 1994

Makaramba R.V and Macha, V.N. Development and Harmonization of EIA Regulations

and Guidelines Report to the United Republic of Tanzania on Environmental Law and

Institutions in Africa 1997

Matheson, K and Faraday, G; Environmental Justice: Who has the Standing to Sue the State? In Innovation: A Magazine of Science, Technology and the Environment Vol.6 No. 2 October, 1999 pp. 10 - 11 Ministry of Tourism Natural Resources and Environment 1994 - National Environment

Action Plan: A First step, Dar es Salaam (Mimeo)

NEMC Guidelines for Environmental Impact Assessment 1997

NEMC National Conservation Strategy for Sustainable Development (NCSSD) (Mimeo)

1995

NEMC, A Study of the Mechanism for Monitoring, Reporting and Enforcing

Environmental Laws and Standards. TISCO Report submitted to NEMC (Mimeo) 1998

Network for Environment and Sustainable Development in Africa: Institutional

Mechanism for Environmental Management in Africa, National Environmental Action

Plan, Ghana 1995

UNEP: Environmental Law in UNEP, 1991

WCED: Our Common Future Report, of the World Commission on Environment and

Development, Oxford University Press, 1987.

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Wildlife Conservation Society of Tanzania (WCST) et al The Proceedings of the

Workshop on “Putting Environment on the National Agenda”, held at Kilimanjaro

Hotel, July 1996.