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Forthcoming in Yale Journal of International Law
1
Contributions of the African Human Rights System to
International Climate Law
Abadir M. Ibrahim* and Angela Hefti**
Abstract:
Climate litigation is proliferating around the world, yet the potential of the African system of
human and peoples’ rights to address climate change remains underexplored. We argue that the
African system of human and peoples’ rights has the potential to be a normative leader in climate
law due to its recognition of collective rights, actiones populares, and the justiciability of the right
to a healthy environment all at once. The system’s explicit recognition of the right to a healthy
environment in several regional treaties, along with jurisprudence that articulates corresponding
state obligations to respect, protect, fulfill, and promote this right, can be extended to protect a
right to a healthy climate. Furthermore, we argue that the African system is close to recognizing
the rights of nature based on a holistic interpretation of African human rights instruments. This
argument is grounded in the regional system’s commitment to protecting, and its openness to
influence from, Indigenous and traditional normative systems. It is also informed by a duty of
environmental care ingrained in many African normative systems including regional and sub-
regional treaties, Indigenous and traditional legal systems, as well as the vast majority of African
constitutions. We demonstrate that the African system is at the forefront of developing human
rights norms relevant to climate change and has the potential to significantly contribute to the
evolution of international climate law.
*Dr. Abadir M. Ibrahim is the Associate Director of the Human Rights Program at Harvard Law School. His
research focuses on African approaches to human rights which studies, among other things, the iteration and
practice of human rights as impacted by Africa’s (post)colonial, religious and traditional heritages.
**Dr. Angela Hefti is a Visiting Fellow at Harvard Law School. Her research focuses on climate change and human
rights law through the lens of feminist theory.
We are grateful to Gerald Neuman and Idriss Fofana for their insightful feedback and review. We are also
thankful to the Fall 2024 Comparative Law students of William P. Alford and Idriss Fofana and to HRP’s Program
Coordinator, Kai Mueller, for their valuable input.
Forthcoming in Yale Journal of International Law
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Introduction
Climate change litigation has significantly increased over the last decade. The number of climate
change related cases has, for example, more than doubled globally in this period.1 Recognizing that
climate change poses serious human rights challenges,2 international human rights bodies have
taken the initiative to articulate responses to the climate emergency. United Nations (“UN”) treaty
bodies have started to recognize the link between climate change and violations of a wide range
of human rights,3 while potentially groundbreaking advisory opinions are pending at the Inter-
American Court of Human Rights and the International Court of Justice.4 In May 2024, the
International Tribunal of the Law of the Sea handed down guidance on states’ obligations in
relation to the marine environment.5 Claimants are also turning to the European Court of Human
Rights, where a historic judgment on climate inaction as a human rights violation was secured in
April 2024.6
While the African system of human rights has great potential to respond to the climate crisis, and
despite the significant human rights harms climate change is causing in Africa,7 its potential
remains underexplored. This situation, however, may be about to change. The African Commission
on Human and Peoples’ Rights (“African Commission” and “the Commission”) is taking steps to
pronounce its position on the obligations of African states in relations to the human rights impacts
1 United Nations Environment Programme, Global Climate Litigation Report: 2023 Status Review, pp.12-16 (UNEP,
2023). Generally, Joana Setzer & Catherine Higham, Global Trends in Climate Change Litigation: 2024 Snapshot,
Grantham Rsch. Inst. on Climate Change & Env’t, London Sch. Econ. & Pol. Sci. 10 (2024).
2 See for ex., Annual Report of the UN High Commissioner for Human Rights and Reports of the Office of the
High Commissioner and the Secretary General, Report of the Office of the United Nations High Commissioner for
Human Rights on the relationship between climate change and human rights, 15. Jan. 2009, A/HRC/10/61, ¶¶ 16-
68.
3 Human Rights Committee, comm. no. 3624/2019, 21 July 2022, UN Doc. CCPR/C/135/D/3624/ 2019 (Billy et al.), and
Ioane Teitiota v New Zealand, 7 January 2020. CCPR/C/127/D/2728/2016 (Teitiota). CRC, comm. no. 107/2019, 22
Sept. 2021, UN Doc. CRC/C/88/D/107/2019 (Sacchi).
4 Request for an Advisory Opinion on the Climate Emergency and Human Rights Submitted to the Inter-American
Court of Human Rights by the Republic of Colombia and the Republic of Chile (9 Jan. 2023). UN Request for an
advisory opinion of the International Court of Justice on the obligations of States in respect of climate change,
UN General Assembly Resolution 77/276, UN Doc A/RES/77/276 (29 March 2023).
5 Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and
International Law, Advisory Opinion, ITLOS Case No. 31 (May 21, 2024), available at
https://itlos.org/fileadmin/itlos/documents/cases/31/Advisory_Opinion/C31_Adv_Op_21.05.2024_orig.pdf.
6 See Angela Hefti, Intersectionality and Standing in Climate-Related Human Rights Cases, Harv. Hum. Rts.
Reflections (22 Apr. 2024). Verein KlimaSeniorinnen v. Switzerland, App. No. 53600/20, Judgment, Eur. Ct. H.R.
(Apr. 9, 2024) [hereinafter KlimaSeniorinnen].
7 Intergovernmental Panel on Climate Change, CLIMATE CHANGE 2007: IMPACTS, ADAPTATION AND VULNERABILITY,
CONTRIBUTION OF WORKING GROUP II TO THE FOURTH ASSESSMENT REPORT OF THE IPCC 47, 414, 435, 791-92 (Cambridge
University Press, 2007) (“hereinafter IPCC Working Group II”); World Meteorological Organization, State of the
Climate in Africa 2019, WMO-No. 1253 (2020) p.26.
Forthcoming in Yale Journal of International Law
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of climate change.8 Besides at least one petition aiming for an advisory opinion by the African Court
on Human and Peoples Rights (“African Court”) on climate change,9 there are also a number of
climate cases working their way through local courts.10 This means that both the Commission and
Court, as well as sub-regional tribunals with human rights mandates,11 are going to be afforded
opportunities to articulate, and make novel contributions to, climate change law.
Our goal in this article is to highlight some of the existing normative contributions of the broader
African system and their potential to impact climate litigation and explore the regional system’s
capacity to spur normative developments relevant to climate law both globally and at the regional
level. Since most African countries contribute less than 0.01% to cumulative greenhouse gas
emissions,12 it is important for African and other climate actors to direct their attention to
interventions that have broader implications. In this article we will focus on ways in which the
regional system can assume normative leadership13 in the development of global environmental
and climate norms. Set in a context in which the political organs of the African Union have not
developed a treaty framework on climate change, the article focuses on how regional and sub-
regional African human rights bodies can apply pre-existing norms in ways that can address novel
challenges posed by climate change.
In this pursuit, while maintaining a positivist baseline, we will draw from an intellectual tradition
that can be described as an “original nations” or a “fourth world” approach to international law.
As a result, we will exercise an intentional openness to looking beyond “civilizational” hierarchies
baked into international law,14 and to expanding the participants, sources, histories, and horizons
8 Zero Draft in relation to the Study on the Impact of the Climate Change on Human and Peoples’ Rights in Africa,
Afr. Comm'n on Hum. & Peoples' Rts. (23 May 2023) pars. 144-191 (hereinafter “Zero Draft”).
9 Isabella Kaminski, The Unique Character of African Climate Litigation, Wave (Feb. 7, 2024) https://www.the-
wave.net/climate-litigation-africa/
10 Sam Adelman, “Climate Change Litigation in Africa: A Multi-Level Perspective” in Ivano Alogna, Christine
Bakker and Jean-Pierre Gauci (eds.), CLIMATE CHANGE LITIGATION: GLOBAL PERSPECTIVES 271, 282-286 (Brill Nijhoff 2021).
11 Note that out of the eight regional economic communities recognized by the AU, the East African Community
(“EAC”), the Economic Community of West African States (“ECOWAS”), and the Southern Africa Development
Community (“SADC”) interpret and enforce human rights standards sufficiently enough to be considered part of
the human rights system together with their tribunals. Thus, this article’s references to the African system
should be understood to include sub-regional judicial bodies. See Solomon T Ebobrah, Human Rights
Developments in African Sub-regional Economic Communities During 2009, 10 Afr. Hum. Rts. L.J. 233, 234, passim
(2010).
12 This brings the combined contribution of the entire African continent to 3% of cumulative greenhouse gas
emissions. See Hannah Ritchie, “Who has contributed most to global CO2 emissions?” Our World in Data (01 Oct.
2019), https://ourworldindata.org/contributed-most-global-co2.
13 Obiora C Okafor & Godwin EK Dzah, The African Human Rights System as ‘Norm Leader’: Three Case Studies,
African Human Rights Law Journal 669, 690-93 (2021).
14 See Robert J. Miller & Olivia Stitz, The International Law of Colonialism in East Africa: Germany, England, and the
Doctrine of Discovery, 32 Duke J. Comp. & Int'l L. 1, 52-55 (2021).
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of international, and more specifically human rights, law.15 Rather than offering a critique of the
international legal system, captured in the African human rights literature by the notion of
contextualization,16 we hope to answer the call of many human rights scholars for the
reimagination of the global human rights system through processes of “cross-cultural dialogue”,17
“inter-civilizational norm making”,18 “inclusive universality”,19 or “vernacularization in reverse”.20
By centering and projecting African, and more specifically non-state, normative constructs on a
global debate, our aim is to contribute to what Makau Mutua refers to as “the construction of a
truly global human rights corpus.”21
This paper proceeds in four parts. In the first two sections, we will shed light on the African
system’s recognition of collective rights and standing rules that offer positive benchmarks for
international climate protection. In the third, we will zoom in on one of the regional system’s
normative contributions, the right to a healthy environment, which is explicitly recognized in the
African Charter on Human and Peoples’ Rights (“African Charter”, “Banjul Charter”)22 and its
supplemental protocols. In this section, turning from pre-existing to novel contributions, we will
show how state obligations that emanate from the right to a healthy environment, the duty to
respect, protect, promote and fulfill, apply to climate change. In the fourth section we will argue
that the regional system recognizes the rights of nature, or that it has sufficient legal basis to do
so, by relying on the implications its pre-existing normative achievements and on its recognition of
Indigenous and traditional normative systems. In showing that this conclusion is supported by
state practice, we will contend that there is a Pan-African normative consensus on the rights of
nature that predates, and is reaffirmed by, modern African states.
15 See for ex., Amar Bhatia, The South of the North: Building on Critical Approaches to International Law with
Lessons from the Fourth World, 14 Oregon Review of International Law 131, 172-173 (2012).
16 See Frans Viljoen, INTERNATIONAL HUMAN RIGHTS LAW IN AFRICA 283-284 (Oxford, Oxford Univ. Press 2nd ed., 2012).
Also generally, Eva Brems “Smart Human Rights Integration” in FRAGMENTATION AND INTEGRATION IN HUMAN RIGHTS
LAW: USERS’ PERSPECTIVES, Eva Brems and Saïla Ouald-Chaib (eds.) 181-82 (Edward Elgar Pub. Ltd. 2018) (also
discusses how contextualization can take place from a historical, economic, ideological, political and cultural, as
well as from regional and domestic, points of view, Id., at 179-86).
17 Abdullahi Ahmed An-Na'im ed., Human Rights in Cross Cultural Perspectives, passim, esp. 2-29 (University of
Pennsylvania Press 1995).
18 See James Thou Gathii, “A Critical Appraisal of the International Legal Tradition of Taslim Olawale Elias,” 21
(2008) Leiden Journal of International Law, 317, 319.
19 Eva Brems, HUMAN RIGHTS: UNIVERSALITY AND DIVERSITY, (Martinus Nijhoff Publishing 2001) 309-314.
20 Daniel Huizenga, “The Right to Say No to Imposed Development: Human Rights Vernacularization in Reverse in
South Africa,” 13:2 (2022) Journal of Human Rights Practice, at 205.
21 Makau Mutua, HUMAN RIGHTS: A POLITICAL AND CULTURAL CRITIQUE (University of Pennsylvania Press 2002), 73. Also
“pluralistic process of cultural integration” in Federico Lenzerini, THE CULTURALIZATION OF HUMAN RIGHTS Law
(Oxford University Press 2014), 246.
22 African Charter on Human and Peoples' Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1982), entered into force Oct.
21, 1986.
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1. Collective Rights
Although collective rights have a long and rich history, their incorporation into international law
was rather limited especially in the post-war period which saw the flourishing of individual rights
norms under the United Nations (“UN”) human rights system.23 The notion of collective rights,
which began to develop as a multilateral minorities regime in the first decades of the 20th century,
seemed to hold a prominent place in the UN Charter and the Universal Declaration of Human Rights
(“UDHR”).24 However, despite the visible but limited recognition of collective rights, and notably
the right to self-determination in the two covenants, and despite the best efforts of African and
other Global-South nations, collective rights norm development seemed to stagnate under the UN
system.25 The adoption of the Banjul Charter in 1981 represented a milestone in the
internationalization as well as the elaboration and expansion of collective rights—rights held by
groups of individuals independent of, and sometimes in addition to, the rights of individual
members.26
The African system’s explicit recognition of collective rights provides a particularly valuable
response to climate change because climate effects like extreme heat and flooding do not target
only individuals but also implicate the rights of many people(s). The African system thus offers
opportunities to address the collective aspect of climate effects by protecting collective rights,
including the right to existences and self-determination, the right to dispose of wealth and natural
resources, the right to economic, social and cultural development, as well as the right to a
satisfactory environment.27 In contrast, individualistically oriented systems, such as the European
human rights system, are limited to responding to individualized harm.28 The African system’s
23 See for ex., Ian Brownlie, The Rights of Peoples in Modern International Law, 9 Bull. Austl. Soc'y Legal Phil. 104,
107-113 (1985) (tracing collective rights in legal documents starting from the 1776 American Declaration of
Independence and a 1790 decree of the French Constituent Assembly to the Banjul Charter).
24 Id., at 105, 107, 109-110; Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather
Than States, 32 Am. U. L. Rev. 1, 48-49 (1982).
25 Ibid. For a summary of the global advocacy for the right to self-determination by African and Asian countries
see Idriss Paul-Armand Fofana, Afro-Asian Jurists and the Quest to Modernise the International Protection of
Foreign-Owned Property, 1955–1975, 23 J. Hist. Int'l L. 80, 97-107 (2021).
26 For ex., Viljoen, supra note 16, at 219-23; Kevin Mgwanga Gunme et al. v. Cameroon, Afr’ Comm’, Comm. No.
266/03 (2009) ¶ 176; Viljoen, supra note 16, at 219-23.
27 See Arts. 20-22, & 24 of the African Charter; also see Lasane Koné, Climate Change and Human Rights in the
Democratic Republic of the Congo: REDD + and the Protection of the Rights of Indigenous Peoples, in CLIMATE
CHANGE JUSTICE AND HUMAN RIGHTS: AN AFRICAN PERSPECTIVE, 207, 225 (Ademola Oluborode Jegede & Adejonwo
Oluwatoyin eds., 2022).
28 Helen Keller and Corina Heri, The Future is Now: Climate Cases Before the ECtHR, 40 NORDIC J. HUM. RTS. 1, 4, 11
(2022).
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collective paradigm allows it to relatively better address climate change as a human rights
challenge.
Collective rights in the African human and people’s rights system are held by peoples.29 In this
sense, the African Commission noted in Endorois, that “the African Charter is an innovative and
unique human rights document compared to other regional human rights instruments, in placing
special emphasis on the rights of ‘peoples’”.30 The term “peoples” is not defined in the African
Charter, but has been interpreted to refer to Africa’s diversity31 and to “a common historical
tradition, racial or ethnic identity, cultural homogeneity, linguistic unity, religious and ideological
affinities, territorial connection, and a common economic life or other bonds, identities and
affinities they collectively enjoy.”32 Although the Commission’s earlier decisions show an openness
to applying the concept to entire populations of the country, an interpretation that may find
application in climate cases,33 it has generally recognized as “peoples” specific groups such as the
“people of Darfur” “Southern Cameroonians,”34 and Indigenous communities like the Endorois.35
In its Endorois decision the Commission emphasized “the linkages between peoples, their land, and
culture,”36 a conclusion that is reinforced by the African Court which noted that Indigenous groups’
survival “depends on unhindered access to and use of their traditional land and natural resources
thereon.”37 The close connection of peoples and their lands is crucial for the recognition of rights
of nature in the African system as explored below.
One of the most crucial, and jurisprudentially well-developed collective rights in protecting
Indigenous peoples’ lands from climate related land loss, such as through desertification, flooding
29 As the Commission noted, “the notion of ‘peoples’ is closely related to collective rights.” African Commission,
Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council)
v Kenya, comm. no. 276/2003 (2009) (“Endorois”), ¶ 149. See Social and Economic Rights Action Center (SERAC)
and Center for Economic and Social Rights (CESR) v Nigeria, Appl. No. 155/96, 27 May 2002 (“Ogoni”), ¶ 68.
30 Endoroi, supra note 29 ¶ 149.
31 African Commission, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v
Sudan, Communications Nos 279/2003–296/2005 (2009), ¶ 220.
32 Endorois supra note 29¶ 251.
33 Viljoen, supra note 16, at 221-223.
34 African Commission, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v
Sudan, comm. nos. 279/2003–296/2005 (2009), ¶¶ 222-23. Gunme et al. v. Cameroon, supra note 26, ¶¶ 178, 201-
203.
35 Endorois supra note 29 ¶ Id., ¶ 79. Also see the Advisory Opinion of the Africa Commission on Human and
Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples’, 41st Ordinary Session
(2007) paras 9-13 (“Advisory Opinion on UNDRIP”); Report of the African Commission’s Working Group of
Experts on Indigenous Populations/Communities, 28th Ordinary Session (2005) (“Working Group Report on
Indigenous Populations/Communities”).
36 Endorois supra note 29 ¶ 151.
37 African Court on Human and Peoples Rights, African Commission on Human and Peoples Rights v. The Republic of
Kenya, 006/212, 6 May 2017, ¶ 109 (“Ogiek”).
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and drought is the right to property.38 The African Commission in Endorois underlined that the
collective right to property requires “a much higher threshold” and a “more stringent” public
interest test when compared to the limitation of individual property rights.39 The African Court
affirmed this position on the existence of a peoples’ right to property, although not addressing the
apparently “more stringent” proportionality standards implied in Endrois40 in its 2017 Ogiek v.
Kenya judgment. The Ogiek case concerned the eviction of the Ogiek hunter-gatherer community
from the Mau forests in Kenya on which they relied for their livelihoods.41
Taking inspiration from the Ogiek community’s normative system and United Nations Declaration
on the Rights of Indigenous Peoples, the Court modified “classical conception” of the right to
property in a way that could preclude the possibility of the permanent alienation of Ogiek land
through sale. Thus, the fact that permanent alienation of property would not have been possible
under Ogiek law before the introduction of colonial land laws was used to interpret the later in a
way that approximates the laws of the former.42 At the same time, the Court also left room for the
modern state to limit usufructuary rights in a way that is compliant with human rights and
potentially environmental standards.43 Based on the strong collective conception of the right to
property in the African system along with the recognition of Indigenous and other peoples as
rightsholders, arguments could be made linking climate-related land loss and Indigenous property
rights. That the African Court allows for collective human rights, which can respond to the
widespread nature of climate change also has implications for who can vindicate these rights.
38 See Koné, supra note 27. at 225. supra note 29 ¶¶ 172-173, 186-87, 212.
39 Id. Although the Commission has not decided a case in which it has to balance between the collective
indigenous right to property and subsequently but legally acquired individual right to property over the same
land, its Batwa decision anticipates that such a conflict could be resolved with the restitution of indigenous title.
See Minority Rights Group International and Environnement Ressources Naturelles et Developpement (on behalf of
the Batwa of Kahuzi-Biega National Park, DRC) v. Democratic Republic of Congo, Comm. No. 588/15 (2022) ¶ 155.
(“Batwa”).
40 Ogiek supra note 37 ¶¶ 123, 130, 164, 167-68. Note here that the religious and property rights here are different
from an individual right to property that is exercised alone or in association or community with others since the
collective right to religion or property in Endorois and Ogiek are a “peoples’” right that cannot be explained as
individual rights that are exercised communally.
41 Ogiek supra note 37¶¶ 3-4, 6.
42 Ogiek supra note 37 ¶¶ 8, 124, 126-128, 140-141 (note, however, that, in addition to the fact the recontextulized
definition of the right to property does not end in becoming determinative of its finding of a violation, the Court
expresses some hesitation by noting a “greater emphasis” on usus and fructus and proceeds “without fully
excluding” abusus, Id. ¶ 127); also see Endorois supra note 29 ¶¶ 88, 90; and George Mukundi Wachira,
Vindicating Indigenous Peoples’ Land Rights in Kenya, LL.D. Dissertation, Faculty of Law, University of Pretoria
57-65 (2008) (who notes that, although normative systems that had components of individual land holding
existed in pre-colonial Kenya, communal holdings were more common and current land ownership norms were
introduced by colonial authorities).
43 Ogiek supra note 37 ¶¶ 127, 129.
Forthcoming in Yale Journal of International Law
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2. Actiones Populares
One of the contributions of the African system with potential implications for climate law is its
explicit recognition of actiones populares—claims brought on behalf of the general public without
requiring the claimants to be direct victims.44 Access to the African human and peoples’ rights
system is particularly broad, compared to the European Court of Human Rights that does not allow
for actiones populares,45 and limits even individuals’ access in climate cases,46 which has prevented
it from recognizing some climate claims.47 The U.N. Human Rights Committee, which has already
decided two climate cases,48 has also explicitly held that “no individual can in the abstract, by way
of an actio popularis, challenge a law [or] practice”49 in addition to ruling out the justiciability of
indigenous peoples’ right to self-determination under the first Optional Protocol.50 The Human
Rights Council’s 1503 procedure, whose origin is connected with the pro-rights campaigns of the
UN’s Africa Group,51 comes closest to the African system by allowing complaints by “any person or
group of persons … including non-governmental organizations”.52
Under Rule 115 (1) of the African Commission, “any natural or legal person”53 can submit an
application to the African Commission, even if they do not “know or have any relationship with the
44 Viljoen, supra note 16, at 305; also see Ademola Oluborode Jegede, “Shifting Lens: The Protection of
Environment and Human Rights under the African Charter on Human and Peoples’ Rights” (2015) 23 South
African Journal of Environmental Law & Policy 23, 33 and Suedi and Fall (n 6) at 5. Justine Bendel and Yusra Suedi,
Public Interest Litigation in International Law (1st ed, Routledge 2023) 57.
45 ECtHR, Burden v. the United Kingdom [GC], appl. no. 13378/05, 23 April 2008, ¶ 33. See also Angela Hefti,
‘Intersectional Victims as Agents of Change in International Human Rights-Based Climate Litigation’ (2024) 13(3)
Transnational Environmental Law, pp. 610–35, at 620-21.
46 In the ECtHR’s first-ever climate case, Verein KlimaSeniorinnen v. Switzerland an NGO was granted standing.
However, the ECtHR limits victim status for individuals, requiring a “high intensity of exposure” and “[a] pressing
need [for] to ensure the applicant’s individual protection.” KlimaSeniorinnen (n 6)¶¶ 487, 521.
47 See KlimaSeniorinnen (n 6) paras 527-535.
48 Billy et al., and Teitiota, supra note 3.
49 Shirin Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius, Communication No. 35/1978, U.N. Doc.
CCPR/C/OP/1 (1984) at ¶ 9.2.
50 See for the Human Rights Committee’s well-established jurisprudence: Roy v Australia, Communication No.
3585/2019, U.N. Doc. CCPR/C/137/D/3585/2019 (2023), ¶ 7.2 and Chief Bernard Ominayak and the Lubicon
Lake Band v. Canada, Communication No. 167/1984, U.N. Doc. CCPR/C/38/D/167/1984 (1990) ¶ 13.3.
51 M. E. Tardu, United Nations Response to Gross Violations of Human Rights: The 1503 Procedure, 20 Santa Clara L.
Rev. 559, 560, 583 (1980).
52 Human Rights Council, Institution-building of the United Nations Human Rights Council, Resolution 5/1,
A/HRC/RES/5/1 (2007) ¶ 87 (d). This procedure is not discussed further here, since it is unlikely to play a
prominent role in the development of climate law and has, for the most part, been supplanted by the Council’s
special procedures. See Gerd Oberleitner, GLOBAL HUMAN RIGHTS INSTITUTIONS 53-54 (2007).
53 Article 115(1) African Commission on Human and Peoples' Rights, Rules of Procedure of the African Commission
on Human and Peoples' Rights (2020), https://achpr.au.int/sites/default/files/files/2021-
04/rulesofprocedure2020eng1.pdf [hereinafter African Commission, Rules of Procedure]. See also Y. Suedi and
Fall (n 6) at 5.
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victim.”54 This means that individuals can submit claims on behalf of others or NGOs can do the
same. NGOs can also act as representatives for victims, represent other NGOs or even initiate
communications in their own name. 55 NGOs are the prime vessel by which claims on behalf of the
general public are brought before the Commission.56 Before the Court, NGOs can also submit
actiones populares, though this is more challenging, as they must hold observer status before the
Commission and the respondent state must have accepted the jurisdiction of the Court.57
The recognition of actiones populares offers an important, albeit still human-centric,58 avenue for
claimants seeking to enforce climate-related human rights claims. This is so because climate
change often concerns larger health and other climate impacts on population groups and even on
the environment itself. While the strict European standing requirements are designed to avoid
overburdening courts, actiones populares in the African system exist to protect actual victims from
retaliation and ensure access to justice for victims who may have died, cannot reveal their identities
safely, or lack privileges that facilitate access to international legal mechanisms.59 Climate change
is arguably a similarly widespread human rights violation that actiones populares were designed to
address. In climate contexts, actiones populares make it easier for large groups of people, but also
those who are destitute or otherwise in at-risk situations, to have their claims considered.
In the context of climate litigation in Africa, which remains largely unchartered and requires
significant scientific and technical expertise, actiones populares can help ensure equal access to
justice. Marginalized and historically disadvantaged groups who are disproportionately affected
54 Article 19 v. The State of Eritrea, African Commission on Human and Peoples’ Rights, Communication No. 275/
2003 (2007) ¶ 65.
55 Sabelo Gumedze, “Bringing Communications before the African Commission on Human and Peoples’ Rights”
(2003) African Human Rights Law Journal, at 121.
56 See id. E.g., Ogoni (n 64)
57 Articles 5(3) and 34(6) Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of
an African Court on Human and Peoples’ Rights, June 10, 1998, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT (III)
(entered into force Jan. 25, 2004), available at https://au.int/sites/default/files/treaties/36393-treaty-0019_-
_protocol_to_the_african_charter_on_human_and_peoplesrights_on_the_establishment_of_an_african_court_
on_human_and_peoples_rights_e.pdf. See Suedi and Fall (n 6) at 6 (submitting that the African Court allows for
claims brought on behalf of the general public).
58 Actiones populares require an identifiable public interest tied to specific victims. Sonja Kahl, The Legal Standing
in Environmental Litigation before Regional International Courts in Africa and Latin America, 20 Opole Stud. Admin.
L. 63, 70 (2022)
59 Article 19 v. The State of Eritrea, African Commission on Human and Peoples’ Rights, Communication No. 275/
2003 (2007) ¶ 65. F. Viljoen, ‘Communications under the African Charter: Procedure and Admissibility’ in Malcolm
Evans and Rachel Murray (eds), The African Charter on Human and Peoples’ Rights: The System in Practice 1986–
2006 (2nd ed., Cambridge University Press, 2008), p. 104.
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by climate change,60 such as Indigenous peoples, women and children face financial and logistical
challenges in suing states for inadequate climate action.61 The support of NGOs is essential for
groups who encounter barriers in bringing litigation to vindicate their human rights. For example,
women living in poverty in African societies often lack the resources needed to initiate climate
litigation.62 Likewise Indigenous peoples in African and other legally plural societies who may not
have the technical capacity to navigate formal legal frameworks or an attitude of litigiousness
required to make the best of state-based legal constructs.63 NGOs can better navigate complex
legal systems at both the domestic and regional levels and help cover some of the high litigation
costs, and therefore ensure access to justice for claimants. Against this backdrop, actiones
populares are “wisely allowed under the African Charter.”64
3. The Right to a Healthy Climate
The African system recognizes the right to “a generally satisfactory environment”, as articulated
in Article 24 of the African Charter, often referred to as the right to a healthy environment.65 The
African contribution to the right to a healthy environment stands out in that its recognition not
only has a treaty-basis but the recognition is replicated in multiple regional and sub-regional
treaties.66 The recognition of this right in the African Charter has the potential to shape the nature
60 See Ademola Oluborode Jegede and Oluwatoyin Adejonwo (eds), Climate Change Justice and Human Rights: An
African Perspective (Pretoria University Law Press 2022), 110. See Oluwatoyin Adejonwo and Olubunmi Afinowi,
“Human Rights Approach to Climate Justice in Africa: Experiences from other Jurisdictions,” in ibid., 35-58, at 55.
Suedi and Fall (n 6) at 2; Jegede and Adejonwo (n 17) at 110.
61 See ECOWAS Court, Judgment No°ECW /CCJ/JUD /16/14, 10 June 2014, ¶ 61, available at:
https://caselaw.ihrda.org/api/files/1584636039574g1clsibjkmo.pdf. (“to ease access to Justice on Human
Rights issues by the most vulnerable individua l s and by impoverished communities, which, most of time, do not
have means to lodge a complaint by themselves, inparticular when the opposite party is a very powerful entity”).
This is particularly interesting in comparison the ECtHR’s first ever climate case, KlimaSeniorinnen (n 6), where it
granted access to justice to an NGO to ensure access to justice.
62 Pedi Obani, ‘Climate Litigation in South Africa and Nigeria: Legal Opportunities and Gender Perspectives’, Kim
Bouwer et al. (eds.), Climate Litigation and Justice in Africa 303 (Bristol University Press 2024).
<https://bristoluniversitypressdigital.com/edcollchap-oa/book/9781529228977/ch013.xml> accessed 28 February
2024.
63 Françoise Hampson, Claudia Martin and Frans Viljoen, “Inaccessible Apexes: Comparing Access to Regional
Human Rights Courts and Commissions in Europe, the Americas, and Africa” (2018) 16 International Journal of
Constitutional Law, 161, 146.
64 Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria,
Appl. No. 155/96, 27 May 2002 (“Ogoni”), ¶ 49. See also F. Viljoen, “Communications under the African Charter:
Procedure and Admissibility” in M. Evans and R. Murray (eds), The African Charter on Human and Peoples’ Rights:
The System in Practice 1986–2006 (2nd ed., Cambridge University Press 2008), 104.
65 We will use the terms right to a “healthy” environment instead of a “satisfactory” environment since the latter
is more widely used and is also a convention has gained traction in the African system, which uses both terms.
E.g., Ogoni (n 64) ¶ 52, supra note 37 ¶ 199, and Batwa, supra note 39, ¶¶ 210, 211.
66 Note that the Inter-American system too, while having to fashion the right through its jurisprudence in the
earlier stages, provides a treaty basis for the right to a healthy environment in the Protocol of San Salvador. The
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and success of human rights-based climate advocacy and litigation as it enables policymakers,
advocates, and litigants to base climate claims directly on environmental rights, without needing
to first connect climate harm to the rights to life or health.67 While the right to a healthy
environment is replicated in most African constitutions,68 the diffusion of the regional norm into
domestic courts can lead to positive outcomes for climate protection in domestic systems that do
not explicitly recognize the right to a healthy environment.69
Beyond the African Charter, the African system’s affirmations of environmental rights are also
reflected in its specialized treaty regimes on women’s and children’s rights. For example, the
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
(the “Maputo Protocol”) protects the right to a “healthy and sustainable environment” for African
women,70 making it the most progressive regional women’s rights treaty regarding environmental
protection. Neither the European nor Inter-American counterparts—the Istanbul Convention and
the Belém do Pará Convention—address environmental issues.71 The inclusion of the right to a
healthy environment, or aspects of it, in these specialized treaties enables claimants who are often
at the forefront of climate impacts, such as children and women, to bring solid climate-related
human rights claims.
The African system’s multi-treaty baseline for the right to a healthy environment provides a sound
basis for the derivation of the right to a healthy climate. The right to a healthy environment applies
ECtHR, on the contrary, does not recognize the right to a healthy environment despite the best efforts
advocates and litigators. See Inter-American Court of Human Rights, Advisory Opinion requested by the Republic
of Colombia, Human Rights and the Environment, OC-23/17, Series A No 23, 15 Nov. 2017, ¶ 59; Additional
Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights,
O.A.S. Treaty Series No. 69 (1988), OEA/Ser.L.V/II.82 doc.6 rev.1 at 67 (1992) Art. 11; ECtHR, Kyrtatos v. Greece,
appl. no. 41666/98, 22 May 2003, ¶ 52; Corina Heri, Justice in the Liminal: The Council of Europe and the Right to a
Healthy Environment, 73 INT. COMP. LAW Q. 319 (2024).
67 See for ex., Suedi and Fall (n 6) at 2 (discussing its potential to accommodate climate related claims).
68 See Christof Heyns & Waruguru Kaguongo, Constitutional Human Rights Law in Africa, 22 S. Afr. J. on Hum. Rts.
673, 706-08 (2006).
69 See for ex., Gbemre v. Shell Petroleum Development Company Nigeria Limited and Others, Federal High Court of
Nigeria, Benin Judicial Division, suit FHC/B/CS/53/05 (14 Nov. 2005) p.30-31 (holding that the provisions of a
statute are null and void for contravening, inter alia, Art. 24 of the African Charter); Export Processing Zone
Authority et al. v. National Environment Management Authority et al., (KLR) KESC 75 (Judgment, 6 December
2024) ¶¶ 105, 135, & 153-155 (using the Ogoni and Ogiek decisions in interpreting Kenyan law on restitution for
the violation of environmental rights).
70 OAU Doc. CAB/LEG/66.6 (2000) Art. 18 (also Id., Arts. 16 and 24). Also see the African Charter on the Rights and
Welfare of the Child (the “African Children’s Charter”), OAU Doc. CAB/LEG/24.9/49 (1990) Arts. 11 (2) (g) and 14
(2) (h).
71 See Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic
Violence, May 11, 2011, C.E.T.S. No. 210. Inter-American Convention on the Prevention, Punishment, and
Eradication of Violence Against Women, June 9, 1994, 33 I.L.M. 1534 (1994).
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in localized contexts, such as the destruction of the environment of Indigenous peoples, the toxic
pollution of rivers, and industrial activities. From the protection of the right to a healthy
environment, however, we can extrapolate the right to a healthy climate72, which broadens African
states’ duties visa-a-vis broader and worldwide impacts. This reorientation that bridges
environmental and climate concerns, and which is within the ambit of the system’s “implied rights”
jurisprudence,73 is anticipated by the Kampala Convention on internally displaced persons. The
Kampala Convention, which is the only treaty that directly addresses climate displacement,
imposes a duty on states to prevent environmental degradation and, when prevention fails, to
protect and assist those who are displaced by the resulting environmental and climate disasters.74
With both the right to a healthy environment and a healthy climate, it is easier to elucidate their
substance through the lens of the state obligations they imply. The Commission and the Court have
clarified the obligations of states with regard to the right to a healthy environment, as including
fourfold duties to respect, protect, promote, and fulfill this right.75 As we will show, these duties
extend and apply to the right to a healthy climate, which would require states to consider the
complexities of who contributes to greenhouse gas emissions and is affected by climate effects as
opposed to limiting their scope to localized impacts and single sources of pollution.
The first of these duties, the duty to respect, emphasizing non-intervention by the state in the
enjoyment of rights, focuses on the state as a potential author of environmental and climate
harm.76 Although it is of less relevance to the climate context in Africa, due to the African
continent’s minimal contribution to the climate crisis, the duty to respect would require African
states to limit their greenhouse gas emissions, also known as mitigation of climate change.77 While
states can fail in their duty to respect by causing greenhouse gas emissions, through state-owned
72 One recent example of recognizing the right to a healthy environment in the climate context is the U.S. Held v.
Montana case, which was affirmed in December 2024 by the Montana Supreme Court. Held v. Montana, 2024 MT
318, 389 Mont. 456, 512 P.3d 789.
73 Viljoen, supra note 16, at 327-29.
74 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (6 Dec.
2012) Arts. Arts. 5 (4), 9 (2) (j), & 10 (3) (“the Kampala Convention”).
75 African Court, Ligue Ivoirienne des droits de l'homme (LIDHO), Mouvement ivoirien des droits humains (MIDH) and
Fédération internationale pour les droits humains (FIDH) v. Ivory Coast, Appl. No. 041/2016 (5 Sept. 2023), ¶ 131, 182;
Ogoni (n 64) ¶ 54.
76 As a result, it has left private violence or such violence that cannot be attributed clearly to a state actor outside
the purview of international law until recently. Dorothy Q. Thomas & Michele E. Beasley, Domestic Violence as a
Human Rights Issue, 58 ALB. L. REV. 1119, 1121 (1995).
77 See in the environmental context Ogoni (n 64) (state oil and gas company is invovled in pollution and the state
authorities engage in violence against environmental defenders) ¶ 65, 69-70. The duty to respect refers to “non-
interventionist conduct.” Id., ¶ 52.
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or controlled oil and gas or utility companies for example, they can also do so by providing
subsidies and grants to industries that cause substantial emissions or deforestation. The duty to
respect would also require states to refrain from persecuting climate defenders, destroying
homes, livelihoods, or other resources that support climate resilience or sustainable lifestyles.78
Similarly, the duty to respect would require states not to impede independent scientific studies
and research on climate impacts in the African region.79
The duty to protect becomes relevant when the authors of climate harm, or of emissions that cause
climate harm, are non-sate actors or state actors other than the state under consideration. The
duty to protect starts with a duty to, to the extent possible, prevent climate related harm,80 and
requires states to both mitigate and adapt to the realities of climate impacts, as well as to
addressing what happens after human rights are harmed. A notable African contribution in this
regard is the duty of states to protect from future harm. Unlike the European system, which relies
on the standard of imminence in climate cases,81 the African system has used the foreseeability
standard in contexts unrelated to climate change,82 which suggests that it might also be applied in
the climate context. The idea of foreseeability has been lauded by European scholars as a way to
replace the imminence standard, which is seen as too restrictive.83 Foreseeability of climate harm
in the African context could be deduced from the existence of climate-related harm as well as
climate science and states’ ratifications of international climate agreements.84 Interestingly, the
ECOWAS Court set the bar for states’ due diligence particularly high, requiring states to prevent
foreseeable harm with “vigilance and diligence.”85 Both the foreseeability standard and the
78 Ogoni (n 64) ¶ 45. These obligations relating to climate defenders insofar relate to the right to a healthy
environment as climate defenders protect the right to a healthy environment. They relate to the human right to
life, the right to freedom of assembly and free speech.
79 Ogoni (n 64) ¶ 53.
80 Ogoni (n 64) ¶ 52; ECOWAS Court, SERAP v. Nigeria, Judgment No. ECW/CCJ/JUD/18/12 (2012) ¶ 112. Cf. Ogoni
(n 64) ¶ 61; African Court, Ligue Ivorienne (n 75) ¶ 183.
81 This entails “an element of physical [and temporal] proximity of the threat”, KlimaSeniorinnen (n 6) ¶ 536. See
also Hefti, van Kolfschooten & Ossom, A Health-Centric Interse ctional Approach to Climate Li tigation at the European
Court of Human Rights, HARVARD HUM. RTS. J. 370-372 (2024).
82 Equality Now and Ethiopian Women Lawyers Association v. Federal Republic of Ethiopia, African Commission,
Communication No. 341/2007, 25 February 2016, ¶ 131.
83 Bell-James & Briana Collins, Human Rights and Climate Change Litigation: Should Temporal Imminence Form Part
of Positive Rights Obligations?, 13 J. HUM. RTS. & ENV’T 212, 220 (2022). Véronique Boillet & Clémence Demay,
L’exigence d’imminence: examen de la jurisprudence de la Cour européenne des droits de l’homme à l’aune de deux
affaires climatiques suisses, N° 135 REVUE TRIMESTRIELLE DES DROITS DE L’HOMME 675, 689–91 (2023).
84 Paris Agreement (n. Error! Bookmark not defined.).
85 ECOWAS Court, Adou Kouma, Village Chief of Similimi et al. v. Ivory Coast, 30 Nov. 2023, ¶ 226. See also Zero
Draft, supra note 8, at ¶ 164 (showing that the African system adopts the foreseeability or awareness standard
more generally): ANGELA HEFTI, CONCEPTUALIZING FEMICIDE AS A HUMAN RIGHTS VIOLATION, STATE RESPONSIBILITY UNDER
INTERNATIONAL LAW 234 (2022) (arguing that the African system makes a significant contribution to the prevention
of harm in the context of women’s rights).
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heightened due diligence obligation in the African context bear great relevance for climate
litigation, where claimants must establish the linkages between climate effects and human rights
violation.
The protective role of the state almost by definition includes the obligation to create and enforce
climate-related laws.86 In the environmental contexts, these laws relate to localized environmental
impacts that stem from specific industrial activities, in the climate context, these laws may have to
take a broader view, anticipating the contributions of a multitude of actors, including the state,
individuals and corporations doing business in Africa. In enacting laws, states should include the
temperature targets of the Paris Agreement,87 to which 54 African states have committed.88 As
the ECOWAS Court aptly put it in SERAP v. Nigeria, even “advanced” laws are insufficient if they
“remain on paper and are not accompanied by additional and concrete measures aimed at
preventing the occurrence of damage.”89
The protective obligation of states includes that of carrying out or requiring climate impact studies
and risk assessments.90 Such assessments should consider the worldwide causes of harm, and take
into account, for example, the conduct of transnational corporations abroad and its effects in
Africa. Risk assessments, besides acknowledging the vulnerabilities of minority and at-risk
communities, should address the fact that climate risks are increasing in “intensity and frequency”
over time. 91 While the African Court has already acknowledged the precautionary principle in Ligue
Ivorienne, applying Article 2 of the African Conservation Convention, which prescribes that states
should adopt conservation measures “in accordance with scientific principles and with due regard
to the best interest of the people,”92 its positionality as a continent particularly vulnerable to
climate risks also enables it to recognize and respond to the unequal impact and ongoing nature
of climate risks.
86 Ogoni (n 64) ¶ 64.
87 Under the Paris Agreement, states must aim to limit global temperature increases to well below 2°C, ideally to
1.5°C. Paris Agreement, Paris (France), 12 Dec. 2015, in force 4 Nov. 2016, available at:
https://unfccc.int/sites/default/files/english_paris_agreement.pdf
88 54 African States ratified the Paris Agreement. See for the temperature targets: Article 2(a) Paris Agreement,
Dec. 12, 2015, 3156 U.N.T.S. 79. African Development Bank, Africa NDC Hub, https://www.afdb.org/en/topics-and-
sectors/initiatives-partnerships/africa-ndc-hub.
89 SERAP v. Nigeria, ¶ 105.
90 See for environmental impact studies: Ogoni (n 64), ¶ 53.
91 Angela Hefti, An Ecofeminist Approach to Climate Risks (2025) MICH. J. INT. LAW (forthcoming).
92 African Court, Ligue Ivorienne (n 75) ¶ 35, 181.
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Once prevention has failed, and harm to the rights of individuals and peoples has been caused, the
duty to provide effective remedies ensues.93 In Ligue Ivorienne the African Court held that the state
had a duty “to ensure full and effective decontamination once the waste had been dumped.”94
Similarly, the ECOWAS Court has stated that legislation aimed at preventing environmental harm
should include “effective reparation of the environmental damage,”95 and that a failure to
“seriously and diligently” hold polluters accountable violates states’ obligations under the right to
a healthy environment.96 In Adou, the ECOWAS Court clarified that impunity for polluters enables
harmful corporate activities in violation of Article 24 and other provisions of the Banjul Charter.97
The duty to remedy climate harm thus require African states to provide reparations including by
recovering some of their costs from companies responsible for causing harm. One could also
imagine the states as having an obligation to seek reparations from greenhouse gas emitting states
through a combined reading of the laws of state responsibility for transboundary harm together
with the obligation of states to protect and provide remedies under human rights law. 98
The duties to promote and fulfill the right to a healthy climate99 require states to, more positively,
“promote conservation” and improve “environmental and industrial hygiene.”100 This also includes
“raising awareness” about climate change through education and research, as well as “building
infrastructures” for resilience.101 Specialized treaties like the Maputo Protocol on women’s rights
mandate that states promote research, invest in renewable energy and develop technologies, all
while promoting Indigenous knowledge systems that support a healthy climate.102 The African
93 For a discussion of this this obligation more broadly as set out in the Commission’s non-climate decisions, see
Ademola Oluborode Jegede, “State Duty to ‘Protect’ Rights and Legal Obstacles to Climate Litigation” in
Bouwer et al. (eds.), supra note 62, at 48-53.
94 African Court, Ligue Ivorienne (n 75) ¶ 183.
95 SERAP v. Nigeria, ¶ 105.
96 SERAP v. Nigeria, ¶ 110; ECOWAS Court, Adou Kouma, Village Chief of Similimi et al. v. Ivory Coast, 30 Nov.
2023, ¶ 223.
97 ECOWAS Court, Adou Kouma, Village Chief of Similimi et al. v. Ivory Coast, 30 Nov. 2023, ¶ 225.
98 See Corfu Channel case, Judgment of April 9th, 1949: ICJ Reports (1949) (describing the notion that “every
State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”
as a “general and well-recognized” principle, at p.22); Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, ICJ Reports 1996, para. 29. Report of the United Nations High Commissioner for Human
Rights, Analytical Study on the relationship between human rights and the environment, A/HRC/19/34, 16 Dec.
2011, ¶ 65. Principles 20 and 24 of the Maastricht Principles on Extraterritorial Obligations of States; Olivier De
Schutter et al., “Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of
Economic, Social and Cultural Rights” 34 (2021) Human Rights Quarterly 1084, 1128, 1135-36.
99 See Ogoni (n 64), ¶ 46.
100 Id., ¶ 52.
101 Id., ¶ 47.
102 Maputo Protocol, Art. 18.
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Children’s Charter includes the duty to promote formal and community-based environmental, and
thus climate, education.103
While what can be described as procedural obligations towards the right to a healthy climate are
relevant to the duties to respect and protect, they are also relevant to obligations to promote and
fulfil in a way that is connected with the states’ broader obligations to overcome the legacies of
colonialism,104 establish a rights-based governance system,105 and proactively foster equality and
non-discrimination.106 The right to access to environmental and climate information includes a
state obligation to proactively create, keep, organize, maintain and disclose such information—as
well as requiring private actors to do the same.107 Whereas the requirement of “prior informed
consent” in the environmental setting was subsequently given a treaty basis,108 Ogoni recognized
the state’s duty to “provid[e] meaningful opportunities for individuals to be heard and to
participate in the development decisions affecting their communities.”109 In addition, the concept
of “consent” of Indigenous communities to decisions affecting them is also well established in
African human rights jurisprudence, as further explored below.110
4. Rights of Nature: An Unexplored Potential
Progressions from the African system’s contributions to potential contributions discussed so far
represent examples of gradational jurisprudential steps that seek to reach new and progressive
conclusions that are based on or implied by the text of the African Charter and by case law. Making
a case for the rights of nature, the notion that nature has or ought to have rights irrespective of
103 African Children’s Charter, Arts. 11 (2) (g) and 14 (2) (h).
104 Ogoni (n 64), ¶ 56.
105 Also see Art. 9 (1) of the Banjul Charter; and Art. 2 (10) of African Charter on Democracy, Elections and Good
Governance (2012) (the “African Charter on Democracy”).
106 The participatory aspects of promoting equality are for example reflected in Arts. 2 (11), 3(7), 8 (3), 29 (3) and
31 of the African Charter on Democracy; Art. 9 of the Maputo Protocol; 9 (2) (k) & (l), 10 (2), 11 (2) of the Kampala
Convention; Arts. 4 (j), 18, 21-24, 27 (b), 29 (2) of the Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Persons with Disabilities in Africa (2020) (the “African Disability Protocol”); and Arts. 2, 5
(3) of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Older Persons (2024)
(“African Protocol on Rights of Older Persons”).
107 Ogoni (n 64), ¶ 53; Afr. Comm’n H.P.R., Declaration of Principles on Freedom of Expression and Access to
Information in Africa, 65th Ordinary Session (2019), Principles 28-30; Afr. Comm’n H.P.R., Model Law on Access
to Information for Africa (2013), Arts. 6-7.
108 African Convention on the Conservation of Nature and Natural Resources (Revised, 2003), Art. 22 (2) (f)
(hereinafter the “African Conservation Convention (2003)”); EAC Protocol on Environment and Natural Resource
Management, Arts., 4 (2) (f), 17 (b), and 34.
109 Ogoni (n 64), ¶ 53.
110 See the discussions on the definition of consent in Sec. 4.2 below.
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the rights of human beings,111 involves a similar process. However, deriving rights of nature from a
human rights system is not as straightforward as, for instance, arguing for a mutatis mutandis
application of environmental law precepts to climate obligations as was done in the previous
section. A more deliberate jurisprudential step is required to justify the rights of nature and a
concomitant extension of the right to pursue legal remedies on behalf of nature.
Building on the African system’s pre-existing achievements on environmental rights, and more
broadly on Indigenous and other peoples’ rights, we will show how the rights of nature can be
derived from the interaction of the regional system with Indigenous and traditional112 normative
systems that already recognize important aspects of the rights of nature. Following a brief
exploration of the rights of nature in African Indigenous and traditional legal systems, we will show
that the African system recognizes the jurisgenerativity of these systems, and that such
recognition has significant consequences to how the region’s human rights treaties are
interpreted. Relying on both textual and purposive interpretation, as well as on the Banjul
Charter’s legislative history and on post-Banjul state practice, we will demonstrate that the rights
of nature have a firm basis in the African system of rights.
4.1 Nature in Indigenous and Traditional Normative Systems
An exploration of the literature on African Indigenous and traditional normative systems quickly
reveals that many of them have been contributing to environmental protection for centuries—
therefore offering protection against climate change related harm. A striking feature of the
literature on this topic is how little of it exists in legal discourse, thus leading to the legal field’s
inability to register Indigenous and traditional normative contributions to environmental
protection. This stands in stark contrast to extensive ethnographic literature covering the broad
contours of this subject, as well as a vibrant, and even specialized, discourse on “African
environmental ethics”. We focus on the African environmental ethics literature which, besides
111 For a discussion on the merits of such a move see the seminal work by Christopher D. Stone, Should Trees Have
Standing--Toward Legal Rights for Natural Objects, 45 SOUTH. CALIF. LAW REV. 450 (1972).
112 Note that we use “Indigenous and traditional” to account for a broad range of Africa’s customary and
religious legal systems. Although the former can be subsumed under the later, we intentionally keep the
“indigenous” distinction which we hope makes it easier to jump between global and African/regional law. Note
also that we use “traditional” despite its challenges for having no better alternatives and because it is in line with
the practices of the regional human rights institutions. We use “traditional” instead of “customary” which can
be confusing in legal discourse where “customary law” has a distinct meaning in African domestic legal systems
and a separate one in international law. For an overview of the terminological conventions, we rely on, see Brian
Z. Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Global, 30 Sydney L. Rev. 375, 397-400
(2007).
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containing a review of the voluminous ethnographic work, provides an interface with the human
rights field through its focus on communitarianism and holism.
Some of the most discussed examples of the environmental ethics discourse, such as,
Ogungbemi’s “ethics of care” or “ethics of nature-relatedness”,113 or Behrens’ “relational
environmentalism”,114 attempt to build a broad-based understanding of what constitutes an Africa-
wide approach to environmentalism. Most, however, engage with one, or a smaller sample of, pre-
colonial, Indigenous, or traditional normative systems in deriving their iteration of an African
ontology and environmental ethic. Some of the more prominent examples of the later include
Ramose’s Ubuntu ecology,115 Tangwa’s eco-bio-communitarianism,116 Kelbessa’s Indigenous
environmental ethics.117 While much of this literature seeks out Indigenous ecological knowledge
expressed in, mythologies, metaphors, taboos, and rituals,118 some, such as Blasu’s “African
theocology”,119 and to some extent Balcomb’s “African theology of the environment”,120 add to
the mix a contextualized layer of Christian or Islamic scriptural hermeneutics and theological
ethics.
Despite Africa’s vastness and diversity, this literature exhibits a surprisingly high level of
convergence on the conclusion that Indigenous and traditional African environmental ethics are
characterized by communitarianism and holism. This convergence is, in a sense, also unsurprising
since it aligns with the African human rights literature. Under a communitarian reading, the African
human rights field converges around the conclusion that African approaches to human rights are
distinguishable for being less individualistic than their Western, especially Western-liberal,
113 As quoted by Philomena A. Ojomo, Environmental Ethics: An African Understanding, African Journal of
Environmental Science and Technology Vol. 5(8), 572, 574-77 (2011).
114 Kevin Gary Behrens, An African Relational Environmentalism and Moral Considerability, Environmental Ethics,
Vol. 36:1, 63, passim (2014).
115 Mogobe B Ramose, AFRICAN PHILOSOPHY THROUGH UBUNTU 99, 105-110 (Mond Books Pub. 2005) (relying on
several Bantu languages, at 35-38, 43-46, 61-62, 97). See also Ndjodi Ndeunyema, Re-invigorating Ubuntu
Through Water, A Human Right to Water under the Namibian Constitution (Pretoria University Press 2021).
116 Godfrey B. Tangwa, B. Bioethics: An African Perspective, Bioethics Vol. 10:3, 183, 192 (1996) (relying on the
culture of the Nso’ people of Cameroon, at 186).
117 Workineh Kelbessa, The Rehabilitation of Indigenous Environmental Ethics in Africa, Diogenes Vol. 52:3, 17
(2005) (relying on the East African Oromo culture, at 21-26).
118 Generally, Ademola Kazeem Fayemi, African Environmental Ethics and the Poverty of Eco-Activism in Nigeria: A
Hermeneutico-Reconstructionist Appraisal, 48:2 Matatu 363, 375-384 (2016).
119 Ebenezer Yaw Blasu, Christian Higher Education as Holistic Mission and Moral Transformation: An Assessment
of Studying Environmental Science at the Presbyterian University College, Ghana and the Development of an
African Theocology Curriculum, Ph.D. Dissertation, Akrofi-Christaller Institute of Theology (2017). Note also that
Blasu explicitly acknowledges that he is engaged in a interpretive process (see Id., at 84-98).
120 A.O. Balcomb, African Christianity and the Ecological Crisis - Tracing the Contours of a Conundrum, Scriptura
vol.118, 1 (2019).
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counterparts.121 Holism extends communitarian notions of kinship, community, and family, not just
to “a vast family of which many are dead, few are living, and countless numbers are unborn”122 but
also to the biosphere, the ecosystem, or the cosmos.123
While both communitarianism and holism are part of the African human rights and environmental
discourses, communitarianism is covered extensively in the human rights literature, whereas
holism is rarely addressed.124 The concept of holism, which finds centrality in African environmental
ethics, emphasizes the inseparability and interdependence of different parts of nature of which
humans are only a part. Some scholars also emphasize that African Indigenous and traditional
normative systems have a relational understanding in which rights and obligations are created
within relationships between members of a community—ideas that are not easily captured by non-
local vocabularies such as ‘holism’, or anthropocentrism and ecocentrism.125 Behrens points out
how the holistic view of family and community creates moral duties towards the diverse members
of this community which, in relevant part, includes the ecosystem and future generations, of both
humans and other species.126 The notion of communal land holding, for example, rather than being
merely about the regulation of economic relations, entails rights and responsibilities to past,
present, and future communities.127
121 Makau wa Mutua, The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of
Duties, 35 Va. J. Int’l L. 339, 346-359 (1995); EI-Obaid Ahmed EI-Obaid and Kwadwo Appiagyei-Atua, Human Rights
in Africa - A New Perspective on Linking the Past to the Present, 41 (1996) McGill Law Journal, 819-854, at 829-30,
837; Josiah A.M. Cobbah, “African Values and the Human Rights Debate: An African Perspective”, 9:3 (1987)
Human Rights Quarterly, 309, at 314-25; Sirkku K Hellsten, Human Rights in Africa: From Communitarian Values to
Utilitarian Practice, Human Rights Review 61, 63 (2004).
122 A quote from a Nigerian chief who was interviewed by the West African Land Committee of UK’s Colonial
Office in 1912. Sara Berry, Hegemony on a Shoestring: Indirect Rule and Access to Agricultural Land, Africa: Journal
of the International African Institute, Vol. 62:3, 327, 342 (1992).
123 Blasu, (n. 119), at 5, also see at 4-5, 10-11; Balcomb, supra note 120, at 51-54, 71-75. Behrens, (n. 123), at 125-128;
Behrens, (n. 114) at 65-66. For an exploration of a broad spectrum of these views see Kevin Behrens, “African
Philosophy, Thought and Practice, and Their Contribution to Environmental Ethics” (2021) Ph.D. Dissertation,
University of Johannesburg, at 53-84.
124 Note that besides the disuse of the notion of holism in the human rights field, the notion later also come to be
used to denote the lack of distinction between three “generations” of rights in the African system. See J. Oloka-
Onyango, Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social Rights in Africa, 26:1 Calif.
Western Int’l L. J. 1, 6-10 (1995); and Vincent O. Orlu Nmehielle, THE AFRICAN HUMAN RIGHTS SYSTEM: ITS LAWS,
PRACTICE, AND INSTITUTIONS 123 (Martinus Nijhoff Pub. 2001). As we will see below, however, an earlier usage of the
phrase in human rights discourse was similar to that of African environmental ethics.
125 Behrens, supra note 114, at 66-67, 69, 82; Caesar Alimsinya Atuire, African Perspectives of Moral Status: A
Framework for Evaluating Global Bioethical Issues, 48 Medical Humanities 238, 239-240 (2022); also generally,
Ramose, supra note 115, at 99; Fayemi, supra note 118, at 382; Balcomb, supra note 120, at 6; however also
Kelbessa, supra note 117, at 399-400 (arguing that “holism” describes African environmental ethics while not
disagreeing with the conclusion on relationality).
126 Behrens, supra note 114, at 69-71, 77-78; Behrens, (n. 123) at 148-149.
127 Kevin Gary Behrens, Moral Obligations Towards Future Generations in African Thought, 8 Journal of Global
Ethics 179, 183-188 (2012).
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What is clear is that the African environmental ethics, both in its Indigenous and modern iterations,
postulates that members of this community have certain rights and owe each other duties of
care.128 The conceptualization human beings as right- and duty-bearing members of a community
cohabited by one or more deities, nature spirits, future generations, ancestors, plants, and animals
has clear ramifications to the rights of nature. While we will be drawing on these ramifications to
make a case for the rights of nature, a conclusion that is common in the African environmental
ethics literature,129 we also should not pass the opportunity to note that this is also an argument
that climate litigators ought to deploy with care. Attempts to iterate Indigenous and traditional
norms in the language of positive law can lead to risks ranging from the reification and
(mis)appropriation of Indigenous and traditional norms, to their (re)construction in ways that
reproduce unjust power-relations or justify serious human rights violations,130 including of
indigenous peoples’ rights.131 The word of caution is especially warranted as we traverse a
normative pluralist setting defined by heightened potentialities and risks that come with
normative and methodological indeterminacy.
4.2 The Legal Pluralist Turn
In order to bring Indigenous and traditional normative systems to bear upon the existence of the
rights of nature it is important to understand their position in the regional human rights system.
Borrowing conceptual frameworks and insights, as well as empirical input, from legal
anthropology, we can see that many Indigenous and traditional normative systems constitute
semi-autonomous legal orders that share the same social field with the state-based legal
systems.132 Whereas the question of whether Indigenous and traditional legal systems exist is an
empirical one and, in some respects a definitional one, the question here is whether the regional
human rights regime accords de jure recognition to these systems and, if so, whether and how
their norms interact with, and modify, the outcomes of state-based international and domestic
legal processes.
128 Balcomb, supra note 120, at 5; Fayemi, supra note 118, at 381-382; Kelbessa, supra note 117, at 18, 24; Ramose,
(n. 115) at 106.
129 For ex., Ojomo, supra note 113, at 573; Kelbessa, supra note 117, at 24; Fayemi, supra note 118, at 370, 378;
Ramose, supra note 115, at 106.
130 For ex., see Martin Chanock, “Human Rights and Cultural Branding: Who Speaks and How” in Abdullahi An-
Na'im (ed.), Cultural Transformation and Human Rights in Africa 38, 39 (Zed Books 2022).
131 For ex., see Koné, supra note 38, at 215-233; Kenneth Toah Nsah, Conserving Africa’s Eden? Green Colonialism,
Neoliberal Capitalism, and Sustainable Development in Congo Basin Literature, Humanities 12 (3) 38, 4 of 24 (2023).
132 Tamanaha, supra note 112, at 394-97; Boaventura de Sousa Santos, The Heterogeneous State and Legal Pluralism
in Mozambique, 40:1 L. & Soc. Rev. 39, 44-47 (2006).
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While protecting Indigenous and traditional normative systems under the right to cultural life,133
the regional system also recognizes them as de facto legal systems.134 In fact, it recognizes that
Indigenous and other peoples can have economic, political, and governance systems, that are
distinct from the state, and which are protected by the right to self-determination135—a right which
the African Court determined to constitute a jus cogens norm of international law.136 Besides
recognizing Indigenous and traditional norms as being part of legal systems whose preservation is
safeguarded by a jus cogens norm, the African system also anticipates that it will have a more
positive interaction with them and is, therefore, amenable to their influence. This is, in a way, no
different from the system’s openness to the diffusion of human rights norms and practices from
other parts of the world.137
A more positive interaction between regional human rights norms, on one side, and Indigenous
and traditional normative systems, on the other, is anticipated by the African Charter itself which
lays equal claim to the legacies of Africa’s historical traditions and the global human rights
movement.138 The Banjul Charter, besides imposing a duty on individuals and states to preserve
African traditions, explicitly notes that “historical tradition” and the “values of African civilization”
should “inspire and characterize” African “reflection[s] on the concept of human and peoples’
rights”.139 This dual commitment to traditional values and the human rights movement is a deeply
entrenched feature of the regional system that is reiterated in numerous treaties,140 with the
African Children’s Charter explicitly listing “African values and traditions” alongside the UDHR as
its interpretive sources of inspiration.141 Given the dual commitment, and given the African human
133 Endorois supra note 29 ¶¶ 246-249; Ogiek supra note 37 ¶¶ 178-179.
134 See Ogiek supra note 37 ¶ 110; Working Group Report on Indigenous Populations/Communities, supra note 35,
at 21, 25-26, 108. Also, indirectly Endorois supra note 29 ¶¶ 241, 250.
135 While this is already articulated by the African Charter’s Art. 20 (1), and implied in Arts. 20-24, it has been re-
affirmed and clarified further in Katangese Peoples’ Congress v Zaire, Comm. No. 75/92, ¶ 4; Ogiek supra note 37 ¶
199 ; The Commission’s Advisory Opinion on UNDRIP, supra note 35, at 14-43; and Working Group Report on
Indigenous Populations/Communities, supra note 35, at 74-75.
136 Bernard Anbataayela Mornah v. Republic of Benin and others, Afr. Ct’, App. No. 028/2018 (22 Sept. 2022) para
298 (“Western Sahara Case”).
137 See Art. 60 of the African Charter.
138 African Charter, Preamble Pars. 3-4, and Arts. 17 (3), 18 (2), 20 (1) and 60. Richard Gittleman, The African
Charter on Human and Peoples Rights, 22 Va. J. Int’l L. 667, 675-76 (1982); Frans Viljoen, The African Charter on
Human and Peoples’ Rights: The Travaux Préparatoires in the Light of Subsequent Practice, Hum. Rts. L.J. 313, 318-
19 (2004). See also discussion connected with Senghor and M'Beye in Sec. 4.3 below.
139 African Charter, Preamble ¶ 4, and Arts. 17 (3), 29 (7).
140 See for ex., African Charter on the Rights and Welfare of the Child (1999), Preamble ¶ 6, & Art. 46 (hereinafter
“African Children's Charter”); African Conservation Convention (2003), Art. 4; African Youth Charter (2009),
Preamble Pars. 4-5, 14, Arts. 20, & 26 (m); African Charter on Democracy, Arts. 27 (9) & 35; and African Union
Convention for the Protection and Assistance of Internally Displaced Persons in Africa (2012), Preamble ¶ 3; African
Protocol on Rights of Older Persons, Preamble ¶ 11.
141 See Art. 46 of the African Children's Charter.
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rights system’s anti-colonial predisposition142 which is especially poignant in Indigenous right
settings,143 it is extremely difficult to imagine the regional system as being open to the influence of
the legal traditions of colonial powers,144 and not to that of legal systems that are the repositories
of African history and tradition.
Despite the regional system’s dual commitment, institutional actors have taken a cautious
approach to normative plurality and have only recently begun exploring the system’s plural roots.
In the Endrois and Ogiek decisions, which represent the African system’s first explicit moves
towards embracing normative pluralism, the regional system created hybrid norms of collective,
that is non-individual, rights to property and to religion.145 These collective rights of Indigenous
peoples cannot be traced to the UDHR and were not articulated explicitly in the Banjul Charter.
However, they did not exist in the Endrois and Ogiek law either.146 These human rights norms can
thus be understood as resulting from legal hybridization, or a double-vernacularization, created
through the interaction between international and Indigenous legal systems.147 These decisions
also highlight the communitarian approach, in which collective and individual rights to religion and
property, instead of being mutually exclusive, are different sides a single reality.
The Endorois decision, in a way that stands opposite the legacy of the colonial acquisition of
Indigenous land through, and without, Indigenous consent,148 provides another instance of a
142 See and Art. 20 (2)
Besides the assumption of the lasting impacts of the colonial experience to human rights practices within the
system, the Banjul Charter goes as far as implying a duty to assist the liberation struggles of “[c]olonized or
oppressed peoples,” Art. 20. See also African Charter, Preamble Pars. 3 & 8; the Cultural Charter for Africa (1990)
Preamble and Arts. 1 (d), 2 (e), 22 (a); Grand Bay (Mauritius) Declaration and Plan of Action (1990) Art. 8 (b);
African Committee of Experts on the Rights and Welfare of the Child, General Comment on Article 6,
CERWC/GC/02 (2014) Para. 4; and African Commission, General Comment No. 4 (2017) Para. 11.
143 See the Ogoni, supra note 64, ¶ 53; Endorois, supra note 29 ¶ 245-246; and Working Group Report on
Indigenous Populations/Communities, supra note 35, at 69-71, 86-97, 111; also generally Western Sahara Case,
supra note 136, ¶ 121, 290-291.
144 At the basic level this includes the civil law and common law traditions which constitute the backbone of
international law. See for ex., Colin B. Picker, International Law’s Mixed Heritage: A Common/Civil Law Jurisdiction,
41 Vand. J. Transnat'l L. 1083 (2008) (classifying international law as a legal hybrid, or a “mixed system”, that
merges the two systems).
145 Endorois supra note 29 ¶¶ 172-173, 186-87, 212; Ogiek supra note 37 ¶¶ 123, 130, 164, 167-68.
146 See Endorois supra note 29 ¶¶ 90, 199, 155, 250, 291, 295; Ogiek supra note 37¶ 140.
147 For a similar process, a description of the “reverse trajectory” in vernacularization, as well as some of the
background to the UNDRIP and Inter-American jurisprudence that the Commission and Court cite, see César
Rodríguez-Garavito, “Globalising the Indigenous: The Making of International Human Rights from below” in The
Complexity of Human Rights: From Vernacularization to Quantification 75, 86, 88-91 (Philip Alston, ed. 2024); see
also, generally, Tamanaha, supra note 112, at 380-381, 403, 409; Santos, supra note 132, at 45-47.
148 See Miller & Stitz, supra note 14, at 16-20, 22-28, 34-39 (2021); James Thuo Gathii, “Geographical Hegelianism in
Territorial Disputes Involving Non-European Land Relations: An Analysis of the Case Concerning Kasikili/Sedudu
Island (Botswana/Namibia)”, in The Third World and International Order: Law, Politics and Globalization 75, 97-99
(Antony Anghie et al. eds., 2003);
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hybrid norm. Endorois requires “consent” to be defined in accordance with Indigenous norms and
procedures.149 Here, again, the notion of, and procedures for, the alienation or land, or the whole
notion of the eminent domain powers by the modern Westphalian state, do not exist in most
Indigenous systems. The Indigenous definitions of consent are also being introduced into
international law in instances where legal standards such as public consultation,150 or “free, prior,
and informed”151 consent, are applied to specific communities.
What is interesting is that an alignment between, or even the contribution of, all the normative
systems in the relevant social fields was not expected to achieve vernacularized human rights
norms. In deciding on collective rights to religion and property, both the Commission and the Court
dealt directly with international law and the normative systems of the Endrois and Ogiek
circumventing Kenya’s colonial and post-colonial laws, as well as its constitution, which recognized
neither Indigenous rights nor collective rights.152 This approach to hybridity was reaffirmed by the
transitional justice policy declarations of the African Commission and the African Union Assembly,
which make provision for the utilization of Indigenous and traditional mechanisms bypassing
criminal justice and due process standards contained in African constitutions and domestic law, as
well as international human rights law.153
The farthest-reaching implication of the African system’s legal pluralist turn is a realization that
nature already has rights under numerous African legal systems. The lived normative reality of
most Africans, a reality captured by Chuma Himonga’s “deep legal pluralism” or described by Sally
Engle Merry’s “new legal realism”,154 is one in which a plurality of legal systems, domestic,
international and non-state, co-exist in overlapping and contiguous social spaces. Recognizing the
plurality of legal systems at this level not only has the advantage of, basically, acknowledging
reality, but it also leads to the recognition that multiple African legal systems extend rights and
149 Endorois supra note 29 ¶ 291.
150 African Charter for Popular Participation in Development and Transformation, E/ECA/CM.16/11 (1990), Art. 9;
also “effective participation” in Art. 3 (7) of the African Charter on Democracy.
151 Endorois supra note 29 ¶ 291. See also Ogoni, n. 64, ¶ 53 (and on the nexus with colonialism, ¶ 58); and Ogiek
supra note 37 ¶ 131.
152 Endorois supra note 29 ¶¶ 90, 199, 155, 250, 291, 295; Ogiek supra note 37 ¶ 140. Note that these cases refer to
the previous constitution of Kenya (1969, rev. 1997) and the 2010 Constitution contains the right to a “clean and
healthy” environment (Art. 42).
153 See African Commission on Human and Peoples’ Rights, Study on Transitional Justice and Human and Peoples’
Rights in Africa (Adopted Apr. 2019) Pars. 61-64; AU Heads of State and Government, African Union Transitional
Justice Policy, (Adopted by the Assembly on Feb. 2019) Pars. 18, 56-59.
154 Chuma Himonga, State and Individual Perspectives of a Mixed Legal System in Southern African Contexts with
Special Reference to Personal Law, 25 Tul. Eur. & Civ. L.F. 23, 26-28, 31 (2010); Sally Engle Merry, New Legal Realism
and the Ethnography of Transnational Law, 31 L. & Soc. Inquiry 975, 976, 980 (2006).
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offer protections to nature and that these legal systems have real-life impacts on human behavior
towards nature.
Recognizing the reality of legal pluralism at this level, however, also leads to some difficulties as it
has to contend with another reality—the reality of the modern post-colonial state. The modern
African state claims, and jealousy guards, a dominant law-making position which leaves limited
space for Indigenous and traditional laws. Although the state can selectively positivize Indigenous
and traditional norms through its own law-making powers, or recognize the law-making capacities
of non-state institutions, it does not directly or clearly recognize those that recognize the rights of
nature. Nor does it directly provide for the rights of nature in its own laws. While this leads to a
complicated situation in which different state and non-state norms with disparate impacts on
human behavior towards nature coexist, the fact remains that the state has the greatest capacity
to affect climate-impacting behavior due to its command over the purse and the sword.
A paradox thus emerges from the reality of deep legal pluralism which presents a challenging legal-
methodological terrain leading to a legal frontier so to say, left undeveloped by both colonial and
post-colonial jurists. These methodological challenges are illustrated by the inadequacies of
conflict of laws which, despite being possibly the only field of positive law with established
methods addressing normative plurality, mostly focuses on choosing between competing norms
and does so based on “civilizational” hierarchies and exclusionary doctrines that favor state-based
laws over Indigenous and traditional ones.155 Despite the existence of state-based pluralist theories
of law, such as policy-oriented jurisprudence which explicitly recognizes the legality Indigenous
normative systems,156 or some that suggest the extension of a the margin of appreciation to
Indigenous institutions,157 methodologies dealing with normative hybridization have not evolved.
Any such methodologies and insights developed by Indigenous and traditional legal practitioners
are inaccessible to us due to our own limitations.
155 See for ex., Gebeye, supra note 181, 55-57, 64-65; Sally Engle Merry, Legal Pluralism, 22 L. & Soc'y Rev. 869, 870
(1988); Robert D. Leslie, The Repugnancy Rule in African Law and the Public Policy Rule in Conflict of Laws, The
Repugnancy Rule in African Law and the Public Policy Rule in Conflict of Laws, 1977 ACTA JURIDICA 117 (1977). Also
generally, Tamanaha, supra note 112, at 383-84, 389, 400-407.
156 For ex., see Siegfried Wiessner, “Indigenous Self-Determination, Culture, and Land: A Reassessment in Light of
the 2007 UN Declaration” in Elvira Pulitano ed., INDIGENOUS RIGHTS IN THE AGE OF THE UN DECLARATION 31, 46
(Cambridge Univ. Press, 2012); Paul Schiff Berman, A Pluralist Approach to International Law, 32 Yale J. Int'l L. 301,
310, 312-15 (2007).
157 Wiessner, id., at 45-47; Valeska David & Julie Fraser, A Legal Pluralist Approach to the Use of Cultural
Perspectives in the Implementation and Adjudication of Human Rights Norms, 23 Buff. Hum. Rts. L. Rev. 75, 96-100
(2017); also see Kristen A. Carpenter & Angela R. Riley, Indigenous Peoples and the Jurisgenerative Moment in
Human Rights, 102 Calif. L. Rev. 173, 222-33 (2014) (discussing examples of the implementation of international
human rights norms in indigenous legal systems).
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The competitive, cooperative, and accommodative interactions between the modern state and
non-state normative systems,158 while generating this seemingly intractable methodological
lacuna, also present a productive tension that can result in the types of normative innovations
described earlier as the pluralist turn. A similar example is provided by César Rodríguez-Garavito’s
description of how Indigenous activism led to the vernacularization and hybridization of human
rights norms, and the subsequent globalization of these norms, reflected in Inter-American human
rights jurisprudence and in the UN Declaration on the Rights of Indigenous Peoples.159 Rather than
being something to be necessarily avoided or invited, the indeterminacy and generative potential
that comes out of the pluralist setting are a “design feature” of the region’s inter-polity normative
order.160 Combined with the African system’s dual commitment to traditional and modern
protections of rights and its strong anti-colonial predisposition, the recognition of legal pluralism,
therefore, creates a great deal of space for innovative jurisprudence.
This space is, however, also spared from the void of indeterminacy by the fact that the African
system is established by, and is primarily a part of, the state-based legal order. Although this places
limitations on the system’s capacity for hybridization, and jurisprudential innovation generally, a
broad margin is also left by the fact that African states have also consented to the system’s ability
to take into account, and seek inspiration from, Indigenous and traditional normative systems.
What this means for the pluralist turn is that the African system will mostly operate within a
narrower set of implications of pluralism which Himonga describes as “state legal pluralism”, or
what comparativists have described as “mixity” or “legal syncretism”.161 At this level, that is, where
the state-based legal system itself sanctions the applicability of Indigenous and traditional norms,
can still unlock significant possibilities for the state-based normative systems, domestic and
international, to draw on African Indigenous and traditional legal systems that support the rights
of nature.
158 For a description of these interactions and their intensification by colonialism and globalization see Tamanaha,
supra note 112, at 386-390, 403-407; Santos, supra note 132, at 42-43.
159 Rodríguez-Garavito, supra note 147, at 87, 88.
160 Extending Idriss Fofana’s description of contradictory understandings and applications of Euro-African
treaties, Idriss Paul-Armand Fofana, The Two Faces of Franco-Sudanian Treaties: The Peripheral Practice of
Ratification as Evidence of Transregional International Law in the Nineteenth Century, 37 Leiden J. Int'l L. 819, 822-
24 (2024).
161 Himonga, supra note 154, at 25-26; Gebeye, supra note 181, 229-234. See also Xavier Blanc-Jouvan, The
Encounter Between Traditional Law and Modern Law in French-Speaking Africa: A Personal Reflection, 25 Tul. Eur. &
Civ. L.F. 197, 203-09 (2010).
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4.3 Teleological Pathways to the Rights of Nature
Indigenous and traditional normative systems can be brought to bear on a rights of nature
jurisprudence of state-based international and domestic legal systems by more consciously
engaging African environmental ethics as part of what Gerald L. Neuman describes as
“suprapositive norms.”162 These norms, although not enforceable, can create interpretive
possibilities as articulations of precepts that are considered a source of the legitimacy of political
or legal systems. The ideal of Ubuntu is an excellent example of a suprapositive norm which,
besides being derived from “living customary law”, is widely adopted by South African courts to
interpret the constitution.163 This approach is appealing because it can allow one to overcome the
lack of direct, or at least unequivocal, positivization of Indigenous and traditional rights of nature
norms in statutory and treaty law. In addition, it also allows interpretive leaps to stay within range
of what states have consented to,164 thus, also potentially avoiding backlash from state actors that
may too jealousy guard their dominant norm-making positions.165
The experience of the Inter-American Court, which relied on an “evolutive interpretation” or a
“living instruments” approach in recognizing aspects of rights of nature is also instructive for how
international human rights bodies can derive the rights of nature through pre-existing
jurisprudence on the right to a healthy environment and indigenous peoples rights.166 Unlike the
Inter-American system which based its rights of nature decision on layers of other implied rights,167
162 Gerald L. Neuman, Human Rights and Constitutional Rights: Harmony and Dissonance, 55 Stan. L. Rev. 1863,
1868-69 (2003).
163 Chuma Himonga, “The Future of Living Customary Law in African Legal Systems in the Twenty-First Century
and Beyond, with Special Reference to South Africa” in THE FUTURE OF AFRICAN CUSTOMARY LAW 31, 45-46
(Jeanmarie Fenrich et al., eds. 2012); Irma J. Kroeze, “Doing Things with Values: The Case of uBuntu” in UBUNTU
AND THE LAW: AFRICAN IDEALS AND POSTAPARTHEID JURISPRUDENCE 333, 334-337 (Fordham University Press 2012).
164 For a broad description of the role of “consensual”, “suprapositive”, and “institutional” aspects of domestic
and international human rights legal norms in the interpretation of these norms, see Neuman, supra note 162, at
1866-72.
165 Abadir M. Ibrahim, Evaluating a Decade of the African Union’s Protection of Human Rights and Democracy:
A Post-Tahrir Assessment, 12 Afr. Hum. Rts. L. J. 30, 46-48, 53-58, 63-64 (2012); Ayyoub Jamali and Martin
Faix, Human Rights Litigation in Africa Under Attack: Analysis of Backlash against Regional and Sub-Regional
Courts, 7:2 Bratislava L. Rev. 9 (2023).
166 See for ex., Inter-American Court of Human Rights, Advisory Opinion 23/17: Environment and Human Rights,
Ser. A No. 23 (15 Nov. 2017) Pars. 43-44, 62-63. Inhabitants of La Oroya v. Peru, Preliminary Measures, Merits,
Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 511, ¶ 118 (Nov. 27, 2023). Also see Id., Advisory Opinion
23/17, at Pars. 48, 62, fn. 100-01, for how the Inter-American Court acknowledges the importance of indigenous
legal norms, some of which are positivized through constitutional incorporation or judicial decisions, in reaching
this decision.
167 See for ex., Federico Lenzerini, Practice and Ontology of Implied Human Rights in International Law, 15
Intercultural Hum. Rts. L. Rev. 73, 94-100 (2020) (describing the derivation of indigenous peoples in the Inter-
American system by layering implied rights, also arguing that the European Court of Human rights has
established a de facto implied right to a healthy environment id., at 106-107); Amy Van Zyl-Chavarro, Defining the
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however, the African human rights regime provides an explicit treaty basis for a number of relevant
peoples’ rights, including indigenous, environmental, and developmental rights. This should
already, one can imagine, not only provide a much stronger basis for a rights of nature
jurisprudence, but may also allow the African system to break new jurisprudential ground—for
example, by connecting the rights of nature to broader climate issues or by explicitly allowing
actiones populares claims on behalf of nature.
Besides the Maputo Protocol’s acknowledgment of the importance of protecting and promoting
women’s indigenous knowledge systems in order to enhance environmental protection,168 the
regional system’s most progressive step in this direction—the Commission’s rather cautious
declaration on sacred sites—follows the Inter-American route by relying on peoples’ rights, the
right to a healthy environment, and the right to development.169 In this declaration, the
Commission recognized the importance of traditional land for the survival of African Indigenous
groups, as well as the importance of Indigenous custodian communities and their governance
systems for the protection of sacred domains, in outlining the need to “recognize and respect the
intrinsic value of sacred natural sites and territories”.170 Although the Inter-American route is more
than sufficient for the African system to reach an explicit and a more robust decision on the rights
of nature, it has additional, and arguably even stronger, pathways to the same conclusion.
The African system’s inspiration, or even partial derivation,171 from Indigenous and traditional
normative systems, allows it to access them as suprapositive norms, not only indirectly through
the implementation of indigenous peoples’ rights, but as a resource for interpreting the Charter—
and in this case the duties provisions of the African Charter.172 It is apt to emphasize that, unlike
other global treaties which make broad statements about duties, the Banjul Charter dedicates a
Right to a Healthy Environment: Insights from the Inter-American Court of Human Rights, 55 Env’t L. p. 29, 35-36,
49 (forthcoming Mar. 2025) (describing how the right evolved from one that is implied from the right to life,
indigenous peoples’ rights, and a broad references to socio-economic rights into an “autonomous” right).
168 Maputo Protocol, Art. 18 (2) (c). One could also read Art. 18 (1) (c) of the African Children’s Charter to
indirectly infer this obligation.
169 African Commission Resolution on the Protection of Sacred Natural Sites and Territories ACHPR/Res.372/LX
(2017) Preamble, ¶ 8.
170 Id., Preamble Pars. 2 & 5, and Arts. 2 and 3. Kevin Bakulumpagi, Resolution of the African Commission on Human
and Peoples’ Rights on the Protection of Sacred Natural Sites and Territories: A Critical Overview, 5 Afr. Hum. Rts.
Yearbook 305, 311, 319-21 (2021) (arguing that the resolution recognizes the rights of nature in part because it
recognizes pre-colonial normative systems that survive to date).
171 See discussion of dual commitment above in Sec. 4.2 and the discussion connected with Senghor and M'Beye
below. Also see, Gittleman, supra note 138, at 675-76 (1982); Mutua, supra note 121, at 368-69.
172 Note that one possible argument we did not pursue is the possibility of using the “common heritage of
mankind” prong of Art. 22 (1) of the Banjul Charter which could support the rights of nature if reinterpreted from
a holistic point of view. See for ex., Cristiano Gianolla, Human Rights and Nature: Intercultural Perspectives and
International Aspirations, 4 J. Hum. Rts. & Env't 58, 76-78 (2013).
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preambular provision and a separate substantive chapter to outlining the duties of individuals
towards their families, societies, and communities.173 The notion of duties is also replicated in the
African Children’s Charter174 and is broadly reflected in other African human rights treaties as
well.175
If viewed from a point of view of the holistic aspects of African environmental ethics, the duties
contained in the Banjul Charter and the African Children’s Charter can be, or ought to be,
interpreted to include duties towards nature. In this reading, the duties to “society” or
“community” can be interpreted as being owed to nature if one takes the holistic view of what
these words mean.176 Duties of the individual to “preserve and strengthen” solidarity or “positive
African cultural values”,177 the same ecocentric leaning values discussed in the previous section,
are owed not only to contemporary members of the community, but to past, present, and future
members of the community—both human and nonhuman.
The African Charter’s legislative history also supports a holistic understanding of “society” or
“community” that is more akin to the African environmental ethics discussed earlier. One can find
evidence for this in Léopold Senghor’s pivotal speech at the opening the inaugural meeting of the
experts that drafted the Banjul Chater in which he articulated notions of communitarianism and
holism as foundational precepts. Senghor, who is joined in this position by Kéba M’Baye, another
Pan-African intellectual leader and a founding figure of the region’s human rights system,178
implored the drafters to make provision for the “Duties of Individuals” in the treaty they were
tasked to draft by noting that:179
Room should be made for this African tradition in our Charter on Human and
Peoples’ Rights, while bathing in our philosophy, which consists in not alienating
the subordination of the individual to the community, in co-existence, in giving
everyone a certain number of rights and duties.
173 African Charter Preamble ¶ 6, and Arts. 27 & 29. Note also that
174 See Art. 31 on the duties of children and Arts. 9(2) & (3), 11 (4), 20 (1) on the duties of parents and guardians;
also see J Sloth-Nielsen & BD Mezmur, A Dutiful Child: The Implications of Article 31 of the African Children’s
Charter, 52 J. Afr. L. 159, 169-187 (2008).
175 Kampala Convention, Art. 20; African Disability Protocol (2020), Art. 31; African Protocol on Rights of Older
Persons, Art. 20; and Convention Governing the Specific Aspects of Refugee Problems in Africa (1974), Art. 3 (1).
176 Arts. 27 (1), 29 (2), (6) & (7) and to some extent Art. 18 (2) of the African Charter; and Art. 31 of the African
Children’s Charter.
177 Art. 29 (7) of the African Charter; Art. 31 (c) & (d) of the African Children’s Charter.
178 Keba M'Baye, “Human Rights in Africa”, in Karel Vasak ed., THE INTERNATIONAL DIMENSIONS OF HUMAN RIGHTS
(UNESCO 1979) (also utilizing the same quote from quoting Collomb).
179 Leopold Sedar Senghor, Address Delivered at the Opening of the Meeting of African Experts Preparing the
draft African Charter in Dakar, Senegal 28 November to 8 December 1979, in Christof Heyns (ed.) HUMAN RIGHTS
LAW IN AFRICA 78-80 (1999).
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… In Africa, the individual and his rights are wrapped in the protection [of] the
family and other communities … [as] Professor Collomb … very rightly observed:
“To live in Africa is to give up being an individual, particular, competitive, selfish,
aggressive, concurrent, man is to live with others, in peace and harmony, with the
dead and living, with the natural environment and the spirits inhabiting [it].”
While this historical context suggests that the ordinary meaning of the Banjul Charter’s duties
provisions included some sort of a duty towards nature, support for the holistic interpretation of
the African Charter is inscribed and re-confirmed in subsequent state practice as well. This can be
found in the constitutions of the vast majority of African states which, in varied ways, incorporate
international human rights law into the constitution or contain bills of rights,180 while also providing
different levels of recognition to Indigenous and traditional normative systems, with some
incorporating peoples’ rights or Indigenous and traditional political institutions into the branches
of government.181 The fact that the duty to protect the environment has been incorporated into
treaties establishing sub-regional economic communities,182 as well as in the African Conservation
Convention,183 evinces similar state practice.
More pertinently, one of the things most African constitutions have in common with each other,
as well as with many Indigenous and traditional normative systems and with African environmental
ethics broadly, is that they indirectly recognize the rights of nature by imposing a duty of care
towards the environment. An overwhelming majority of Africa’s constitutions, about 89% of them,
impose a duty to care for the environment.184 While almost all these constitutions impose the duty
on the state, a little over half of them single out “every citizen” or “every person” as a bearer of
the duty. Generally, the duty is a positive one, imposing an obligation to act in some way—to
180 Heyns & Kaguongo, supra note 68, at 676-77, 679-80 (2006).
181 Id., at 678. Berihun Adugna Gebeye, A THEORY OF AFRICAN CONSTITUTIONALISM 63-65 (Oxford University Press,
2021); Katrina Cuskelly, CUSTOMS AND CONSTITUTIONS: STATE RECOGNITION OF CUSTOMARY LAW AROUND THE WORLD 6-11
(IUCN 2011).
182 See Treaty Establishing the EAC, July 7, 1999, 38 I.L.M. 1482 (1999) Arts. 109 (d), 111-14, 101 (2) (f); the ECOWAS
Treaty, revised July 19, 1993, 20 I.L.M. 1476 (1993) Art. 29; Southern African Development Community Treaty,
Aug. 17, 1992, 31 I.L.M. 1437 (1992) Art. 5 (1) (g) & 21 (3) (f). Also, Kahl, supra note 58, at 72-74.
183 Preamble, ¶ 5. This has prompted scholars to argue that a combined reading of Art. 24 of the Banjul Charter
with the Preamble and Art. 3 of the 2003 African Conservation Convention imply not just a duty to protect the
environment but to do so for its own worth or without considering impact on human beings, see for ex., Jegede,
supra note 44, at 41. But see, Bolanle T. Erinosho, The Revised African Convention on the Conservation of Nature
and Natural Resources: Prospects for a Comprehensive Treaty for the Management of Africa's Natural Resources, 21
Afr. J. Int'l & Comp. L. 378, 384 (2013) (arguing that the Conservation Convention is anthropocentric and has a
utilitarian outlook rather than a protectionist or preservationist one).
184 See African Charter, Preamble, ¶ 6.; and infra notes 193-200 and accompanying text.
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“protect”, “preserve”, “conserve”, “defend”, as well as to “enhance” and “promote” different
aspects of nature and the environment.185
To say that human beings owe duties to nature, while already a shift away from anthropocentrism
to a more ecocentric view, can also be shown to mean that nature has corresponding rights as
well. Rights of nature can be derived from clearly articulated duties to respect and protect the
environment by relying on a Hohfeldian correlation between rights and duties.186 The derivation of
correlating state duties from rights is rather common in the human rights field as already
demonstrated in the regional jurisprudence on the right to a healthy environment discussed
earlier. The same reasoning can also be applied to the derivation of the rights of the environment
from the duties of states, citizens, or of legal or natural persons, to abstain from harming the
environment, or to take positive measures to protect it from being harmed by others. Such
reasoning has been used, for example, by courts in India and Pakistan to recognize the rights of
watercourses, ecosystems, and nonhuman animals.187 While Islamic law applies similar typologies
that extend protections to animals,188 legal scholars have also shown, using Hohfeld, that the rights
of nature are not uncommon in the animal-welfare laws of Western countries and the European
Union law.189
Given how widespread and deeply engrained African environmental ethics and the duty of care are
in Indigenous and traditional systems, in constitutional law, as well as in regional human rights and
in non-human rights treaties, the rights of nature could be seen as constituting a Pan-African
normative consensus. Such a high level of consensus is more than sufficient to meet the regional
recognition and the consistency with state practice requirements of Article 61 of the Banjul Charter
185 See d infra notes 193-200 and accompanying text.
186 Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23:1 Yale Law
Journal 16, 30 (1913). For a literature review and explanation of the Hohfeldian argument as applied to nature
and animals, see Yaffa Epstein & Eva Bernet Kempers, Animals and Nature as Rights Holders in the European
Union, 86:6 Modern L. Rev. 1336, 1339-41, 1353-57 (2023).
187 Lovleen Bhullar, Environmental Constitutionalism and Duties of Individuals in India, 34 J. Env't L., 399, 411 & fn.
88 (2022); Amjad Hussain et al., The Study of Animal Rights and Related Laws in Pakistan, 6 Global Legal Studies
Review 96, 100 (2021).
188 Richard C. Foltz, Animals in Islamic Tradition and Muslim Cultures 30-31, 46-60 (OneWorld 2006); Kristen A.
Stilt, Constitutional Innovation and Animal Protection in Egypt, 43 Law & Social Inquiry, 1361, 1380-1382 (2018); for
more on the typology itself see Anver M. Emon, Natural Law and Natural Rights in Islamic Law, 20 J. L. & Religion
325, 328-37 (2006).
189 See for ex., Saskia Stucki, Towards a Theory of Legal Animal Rights: Simple and Fundamental Rights, 40 Oxf. J.
Legal Stud. 553, 544-52 (2020); John Groom, Legal Animal Rights and Animal Welfare Legislation, 2 City L. Rev. 45,
49-52 (2020). Steven M. Wise, The Struggle for the Legal Rights of Nonhuman Animals Begins - the Experience of the
Nonhuman Rights Project in New York and Connecticut, 25 Animal L. 367, 374-78 (2019).
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which, alongside Article 60, constitutes the Charter’s interpretive guideline.190 Before settling on
this conclusion, however, one has to anticipate one challenge to the Hohfeldian argument—
whether the rights that correspond with the duty of care belong, not to nature, but to human
beings. Afterall, many African constitutions, besides the duty of care for nature, also provide for
an anthropocentric right to a safe and healthy environment,191 which could be interpreted to mean
that the duty of care may be owed to human beings, to individuals and peoples, and not to
nature.192
The fact that duties can be, or are, owed to humans does not necessarily preclude the rights of
nature as, in most situations, nature can be a corresponding right holder of the duty of
environmental care, on top of or irrespective of whether human beings also have corresponding
rights. This is especially the case if we consider the fact that the same communitarian and holistic
understandings discussed earlier underpin the setting in which these constitutions are written,
read, or applied. Even if we ignored the African normative settings of these constitutions, however,
the rights of nature conclusion will still stand on a purely lexical reading of these constitutions. Up
to thirty-eight out of forty-eight African constitutions that contain the duty to protect the
environment declare the duty in a way that supports the derivation of correlating rights of nature.
Nineteen constitutions that contain the duty to protect the environment, many of which contain
either no193 or only indirect194 reference to the right to a healthy environment, incorporate this duty
outside of their bills of rights.195 The remaining nineteen constitutions articulate the right to a safe
190 Note that while the “rules expressly recognized by [AU] member states” prong of Art. 61 is met by the post-
Banjul treaties that recognize the duty of care, the “African practices consistent with … on human and people’s
rights” prong is met by all of the domestic, international and non-state norms.
191 Heyns & Kaguongo, supra note 68, at 707. See also Oluwabusayo Temitope Wuraola, “The Legal Rights of
Natural Entities: African Approaches to the Recognition of Rights of Nature” in Human Rights and the
Environment under African Union Law 137, 141-142 (Michael Addaney Ademola Oluborode Jegede eds., 2020)
(arguing that African constitutions an only be interpreted as being anthropocentric).
192 For ex., courts in Ghana and Nigeria have interpreted constitutional duties of environmental protection as
bestowing a corresponding right on human beings and not on nature. This is, of course, granting that the courts
did not opine on a rights of nature interpretation as plaintiffs did not make a claim on behalf of nature. Centre for
Public Interest Law v. Environmental Protection Agency, (EN)1/2005, High Ct. at Accra (Mar. 27, 2009) p. 4-5; Oil
Pollution Watch v. Nigerian National Petroleum Corporation SC. 319/2013 (2018) p. 587, 597.
193 These include the Const. of Equatorial Guinea (1991, rev. 2012); Madagascar (2010); Nigeria (1999, rev. 2011);
Tanzania (1977, rev. 2005).
194 Eritrea (2007) Art. 8 (3); Eswatini (2005) Arts. 60(3), 63, 210 (2), 216; Gabon (1991, rev. 2023) Arts. 1 (8), 47 ¶1;
Ghana (1992, rev. 1996); Guinea-Bissau (1984, rev. in 1996); Malawi (1994, rev. 2017) Art. 13 (d); Namibia (1990 rev.
2014) Art. 95 (i); Sudan (2019) Art. 8 (14); and Zambia (1991, rev. 2016) Arts. 43 (1) (d) & (2) (f), 255-57.
195 In addition to supra notes 193-194, see Const. of Cameroon (1972, rev. 2008) Preamble Principle 21;
Chad (2023) Arts 51, 57; Egypt (2014, rev. 2019) Arts. 44-46, 78, 236; Lesotho (1993, rev. 2018) Arts. 27 (1) (b), 36;
Mauritania (1991, rev. 2012) Art. 19; South Sudan (2011, rev. 2013) Arts. 37 (b), 41, 46 (2) (g), 152 (e), 166 (c) (j), 173
(2) (i) & (n), 175 (2) (f). Note, however, that the constitutions of Cameroon, Egypt, Eritrea, Guinea-Bissau, and
South Sudan are also sufficiently open to anthropocentric interpretations despite not containing their duty of
care provisions in their bills of rights.
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environment and the duty to protect the environment sufficiently independently of each other or
do not subsume one to the other. These include constitutions that either contain the duty both
inside and outside their bills of rights,196 contain it as a duty in bills of “rights and duties”,197 or
contain separate bills of rights and bills of duties with the duty of environmental care falling in the
latter.198
Alongside six African constitutions that contain no reference to either the right to a healthy
environment nor to the duty to care for nature,199 only ten of the constitutions that contain a duty
to protect the environment contain the duty in their bills of rights and articulate it as a duty owed
to human subjects who wield the right.200 While one can show how even these constitutions can
support the rights of nature from other points of view,201 even without these constitutions, one is
left with a significant amount, at least 70%, of Africa’s constitutions that directly support the
Hohfelidan argument. The notion that there is a Pan-African normative consensus on the rights of
nature is strengthened by the fact that communitarian and holistic approaches that temporally cut
196 See Const. of: Algeria (2020) Arts. 20, 67; Angola (2010) Arts. 21 (m), 39, 91 (2); Comoros (2018) Arts. 8 ¶ 9, 43;
Kenya (2010) Arts. 42, 69-70; Mali (2023) Arts. 22, 25, 42; Mozambique (2004, rev. 2007, subsequently amended)
Arts. 45 (f), 90, 117; Niger (2010, rev. 2017) Arts. 35, 37, 149; Rwanda (2003, rev. 2015) Arts. 22, 53; Sao Tome and
Principe (1975, rev. 2003) Arts. 10 (d), 49 (1), 50 (2); South Africa (1996, rev. 2012) Arts. 24, 152; Somalia (2012,
subsequently amended) Arts. 25, 45; Uganda (1995, rev. 2017) Arts. XIII, XXVIII, 17 (j), 39, 237 (2)(b), 245;
Zimbabwe (2013, rev. 2017) Arts. 73, 282 (d).
197 See Const. of: Algeria (2020) Arts. 20, 67; Angola (2010) Arts. 21 (m), 39, 91 (2); Cape Verde (1980, rev. 1992)
Arts. 70, 82; Comoros (2018) Arts. 8 ¶ 9, 43; Cote d’Ivoire (2016, rev. 2020) Arts. 27, 40, ; Guinea (2020, suspended
since 2021) Art. 22; Mali (2023) Arts. 22, 25, 42; Mozambique (2004, rev. 2007, subsequently amended) Arts. 45 (f),
90, 117; Niger (2010, rev. 2017) Arts. 35, 37, 149; Somalia (2012, subsequently amended) Arts. 25, 45; See also
Senegal (2001, rev. 2016) which lists the right to a healthy environment in Art. 8 separately from a list of duties,
including environmental duties, in Art.25-3 while also merging the two ideas in Art. 25-2. Although the fact that
Art. 25-3 is contained under a title listing its bill of rights, the fact that duties are listed separately makes this
constitution sufficiently ambiguous to include it in this list or one that sees the duty as corresponding to a human
right to a healthy environment.
198 See Const. of: Rwanda (2003, rev. 2015) Arts. 22, 53; Seychelles (1993, rev. 2017) Arts. 38, 40; Uganda (1995,
rev. 2017) Arts. XIII, XXVIII, 17 (j), 39, 237 (2)(b), 245.
199 This includes the Const. of Botswana (1966, rev. 2016); Djibouti (1992, rev. 2010); Liberia (1986); Libya (2011,
rev. 2012); Mauritius (1968, rev. 2016); and Sierra Leone (1996, rev. 2013).
200 See Const. of: Benin (1990, rev. 2019) Art. 27; Burkina Faso (1991; rev. 2015) Art. 29; Burundi (2018) Art. 35;
Central African Republic (2023) Art. 53; Democratic Republic of Congo (2005, rev. 2011) Art. 53; Republic of Congo
(2015) Art. 41; Gabon (1991, rev. 2023) Art. 1 (8); Morocco (2011) Art. 31; Togo (1992, rev. 2007) Art. 41; Tunisia
(2014) Art. 45.
201 Most African constitutions, including the ones that do not allow for the Hohfeldian argument provide room
for a rights of nature interpretation through their recognition of the importance of traditional institutions and
cultural values which support the rights of nature or at least communitarian and holistic interpretations
descrived in Sec. 4.1 above (for ex. see the constitutions discussed in Gebeye, supra note 181, at 63-65; Cuskelly,
supra note 181, at 6-11). We do not explore these possible interpretations which require a detailed constitution-
by-constitution analysis, since our interest is limited demonstrating full implications of the duty of care as a result
of the correlation between rights and duties.
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across the pre- and post-colonial divide still pervade in the settings in which African constitutions
were created and operate.
In addition, it is important to note that the Pan-African consensus can also be broadened with
advocacy and, in the legal sphere, with constitutional and statutory amendments as well as
through judicial decision which can, in turn, influence both constitutional interpretation and state
practice. Uganda provides an instructive example in which a constitution, which contains separate
articulations of a duty to protect the environment and an individual right to a clean and healthy
environment,202 was clarified through a statute stating that “[n]ature has the right to exist, persist,
maintain and regenerate its vital cycles, structure, functions and its processes in evolution.”203 The
same statute also incorporates the actio popularis principle allowing any person to bring a lawsuit
for “any infringement of rights of nature” which includes a right to proactively request
environmental and social impact and risk assessments.204 Overall, the incorporation of
environmental duties and the rights of nature in the African Chater and Constitutions into positive
law will simultaneously also aid in the implementation of the rights of nature at the domestic
level.205
Conclusion: African Solutions to Global Problems?
This article has highlighted the untapped potential for Africa to emerge as a strong normative
leader in global climate protection, with great potential for inspiring climate litigation on the
continent and beyond. The African system’s existing contributions to international climate law are
outstanding. Specifically, the African system’s recognition of collective rights, actiones populares
and a justiciable right to a satisfactory environment provide a robust basis for climate claims. In
addition, its acknowledgments of the intrinsic, or non-anthropocentric, value of sacred natural
sites and territories is a progressive step that brings the rights of nature within reach. While these
are laudable steps, the African system’s past jurisprudential and normative achievements place it
202 See Arts XXVII of the directive principles as well as Arts. 245 & 237 (state duty to env.); Art. 17 (individual duty
to the env.); and Art. 39 & XIII of the directive principles (individual right to safe env.) of the Constitution of
Uganda (1995 rev. 2017).
203 National Environment Act, No. 5 of 2019, The Uganda Gazette No. 10, Volume CXII (Mar. 7, 2019), Art. 4(1).
204 Id., Art. 4(2), 118(1)
205 Part of the reason why this article did not take positive law as evidence of state practice also has to do with
the overall low levels of implementation of international and constitutional rights law by African states which
cannot be used as evidence of non-acceptance or the non-binding nature of the norms themselves. See for ex.
Frans Viljoen & Lirette Louw, State Compliance with the Recommendations of the African Commission on Human
and Peoples' Rights, 1994-2004, 101 AM. J. Int'l L. 1, 5-7 (2007) (putting the level of full-compliance with the
decisions and recommendations of the Commission regarding the violations of the Banjul Charter in the mid-
2000’s at 14%).
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in a position where it can make significant contributions to the development of international
climate law.
In the Ogoni decision, the African Commission explained its position on the justiciability of
collective rights, including the collective right to a healthy environment, by noting that “[t]he
uniqueness of the African situation and the special qualities of the African Charter” imposed upon
it a duty to read international law and human rights in a way that is “responsive to African
circumstances.”206 Climate change once again puts the African system in a unique, in fact
historically unprecedented, circumstance to which it has to, and will, respond. A particularly
pertinent facet of climate change is that, despite Africa being one of the most vulnerable regions
to climate impacts, its limited contribution to greenhouse gas emissions leaves African states, and
thus the African human rights system, with limited mitigatory recourse.207
Unlike in the Ogoni case, where it followed a localized and contextualizing approach, the African
system has to take a decidedly global and integrative view of climate norm development. While
not necessarily losing sight of its contextualizing role, and of the localized nature of climate
impacts, the African system can approach climate norms with the understanding that is engaging
in judicial dialogue with global and regional bodies in co-developing global norms.208 At the same
time, global human rights bodies should pay greater attention to the potential of the African
human and peoples’ rights system. Africa may just hold the answer to how international law can
contribute to tackling climate change.
207 IPCC Working Group II, supra note 7, at 47, 414, 435, 791-92; Hannah Ritchie, “Who has contributed most to
global CO2 emissions?” Our World in Data (01 Oct. 2019), https://ourworldindata.org/contributed-most-global-co2
(concluding the combined contribution of the African continent to 3% of cumulative greenhouse gas emissions).
208 For a description of the modalities of this such dialogue more broadly see Neuman, supra note 162, at 1880-99.
Generally, also Gerald L. Neuman, “Standing Alone or Together: The Human Rights Committee’s Decision in AP v
Russian Federation” in Eva Brems and Ellen Desmet (eds), INTEGRATED HUMAN RIGHTS IN PRACTICE 86-95 (Edward
Elgar Publishing 2017).
