‘Greening’ the Zambian Judiciary with Forest Reserve 27- A Comment on the Court of Appeal Ruling in the case of Moses Lukwanda and 9 Others v. Zambia Airforce Projects Limited and 7 Others

[Dr Pamela Towela Sambo]

ON 17th February 2020, the Court of Appeal rendered its Ruling in respect of the Appellants’ renewed application for the order of interim injunction in the case of Moses Lukwanda and 9 others v. Zambia Airforce Projects Limited and 7 others CAZ/08/323/2019.

The Appellants sought an order of interim injunction restraining five Respondent investors from continuing construction works or developments in or around the area known as Forest Reserve 27. Although the ruling under discussion only relates to the application for injunction, it is important to restate the full orders and declarations that were sought by the Appellants in the interest of environmental protection, namely that:
(i) the Respondent investors must obey the Protection Order dated 22nd September 2017 issued by Zambia Environmental Management Authority (ZEMA) and by which they were instructed to stop their construction works;
(ii) the development initiatives that were being implemented in and about Forest Reserve 27 threaten supply and access of wholesome water to both the Busoli people and the general public;
(iii) the continuation of the Respondent investors’ development activities infringes both the Appellants’ and the general public’s right to a clean, safe and healthy environment in line with the Constitution and the Environmental Management Act, No. 12 of 2011;
(iv) the Respondent investors be compelled to take measures to restore the degraded environment within Forest Reserve 27; costs and any other reliefs deemed reasonable by the Court.

This commentary highlights the importance of the Court of Appeal’s ruling, despite only being an interlocutory decision. The ruling has attracted immense public interest both in Zambia and beyond its geographical borders. Why is this so?

First, from a purely legal perspective, there has been a dearth of Zambian precedents specifically analysing environmental law matters to the depth and breadth of this ruling, as this commentary will show. Second, and more relevant to public interest, this ruling gives legal significance to the relevance of Forest Reserve 27 as an environmentally and ecologically sensitive area. It houses the Chalimbana River Catchment and Lusaka Aquifer system which are important as water recharge centres for the entire Lusaka region. According to Chibamba and Nchito, seasoned researchers in the Department of Geography and Environmental Studies in the School of Natural Sciences at the University of Zambia, the issue of developments encroaching on recharge zones and water management areas has far reaching negative consequences as the urban development in Lusaka is responsible for robbing the city of its natural recharge zones. At present, the city only has two water recharge zones – Forest Reserves 26 and 27, underscoring why Forest Reserve 27 needs to be protected from any further encroachment.

This Ruling stands out as an unrivalled precedent from the Zambian courts because it recognises that injunctions are an important tool for enforcing environmental law; and further that the State Proceedings Act does not bar the granting of injunctions against parastatals and other privately incorporated companies in which the State has an interest. The Court pronounced itself on this in relation to the Respondent investors in the following specific terms:
The immunity in relation to injunctions in the State Proceedings Act only applies to the State or a public officer executing his official duties…it does not provide immunity for commercial entities incorporated by the State and I opine that the Legislature did not intend to protect private companies incorporated or engaged by the State to carry out various activities.

This view corrects the erroneous view of the Lusaka High Court that it was in the public interest that adequate facility be provided to the men and women serving in ZAF Projects Limited, to continue with developments that flew in the teeth of environmental law. From the facts of the case, the preservation of a pristine environment in Forest 27 is what fits into the definition of public interest, as it facilitates important environmental and ecological processes that are responsible for water regeneration.

The ruling goes further to clarify that contrary to the Respondents’ argument, there was nothing in the provisions of section 106 of the Environmental Management Act which compels members of the public to first seek recourse to the Director General of ZEMA, before going to Court for redress in the event of environmental injury. In essence, this means that the Director General of ZEMA is empowered to issue compliance orders against environmental offenders without the necessity of invoking the powers of the courts, which in themselves can operate independently in the environmental interest.

The right to a clean, safe and healthy environment provided in section 4 of the Environmental Management Act has never had judicial interpretation since 2011 when it was introduced. In this Ruling, the Court of Appeal recognises that the right to a clean, safe and healthy environment “makes it abundantly clear that an aggrieved person may commence an action in relation to any perceived disobedience to the provisions of the Environmental Management Act.”

Although the Court of Appeal was not necessarily tasked with interrogating the import of section 4 of the Environmental Management Act, it nonetheless proceeded to emphasise the need to actualise this important right in the context of Zambia. According to renowned environmental lawyer, Professor Abdul Haseeb Ansari, the right to a healthy environment has been gaining prominence, greater emphasis and all states, big and small, rich and poor, developed and developing, in principle have accepted the idea of sustainable development. Accordingly, most states have enacted legislation that incorporates the right to life as a fundamental right and the right to a healthy environment is a vital aspect of the right to life.” Without a healthy environment, it would be impossible to sustain an acceptable quality of life or even life itself.

In order to fully appreciate the importance of the right to a clean, safe and healthy environment in Zambia, it is important in this commentary to elaborate the provisions of the Environmental Management Act. Section 4 (1) provides that “subject to the Constitution, every person living in Zambia has the right to a clean, safe and healthy environment,” while section 4 (2) continues with the provision that “the right to a clean, safe and healthy environment shall include the right of access to the various elements of the environment for recreational, education, health, spiritual, cultural and economic purposes”. These two clauses of section 4 are important in that the right to a clean, safe and healthy environment in Zambia is extended to all aspects of the environment- water, air, soil, forests etc. Section 4(3) provides that “a person may, where the right in subsection (1) is threatened or is likely to be threatened as a result of an act or omission of any person, bring an action against the person whose act or omission is likely to cause harm to human health or the environment”. The provision emphasises that a person may bring an action where the right to a clean, safe and healthy environment is threatened or is likely to be threatened. The import of the right to a clean, safe and healthy environment is that any juridical person may commence action in the event of both threatened and actual environmental damage. The legal action by the affected person, “may seek to prevent, stop or discontinue any activity or omission which threatens, or is likely to cause harm to, human health or the environment”. Section 4(3) is a universal provision in the sense that any person can initiate legal action in furtherance of environmental protection, whether or not they are directly affected. This is a departure from usual practice where the right to bring an action is based on actual harm or injury being occasioned to the person bringing the action.

The right to a clean, safe and healthy environment essentially guarantees the exercise of the right to life. It is for this reason that in India, the environmental right has been given judicial interpretation akin to the right to life. As far back as 1991, the constitutional bench of the Indian Supreme Court had made the link between environmental quality and the right to life. In the case Charan Lal Sahu, the Supreme Court interpreted the right to life guaranteed by Article 21 of the Constitution to include the right to a wholesome environment. In other Indian cases such as Subash Kumar, the Court observed that the “right to life includes the right of enjoyment of pollution-free water and air for full enjoyment of life,” and by implication that all governmental agencies “could no longer rest content with unimplemented measures for the abatement and prevention of pollution as they would be compelled by the courts to take positive measures to improve the environment”. These decisions were reaffirmed in M.C. Mehta v. Union of India, where the Supreme Court held that “life, public health and ecology have priority over unemployment and loss of revenue”.

In analysing the need to grant the injunction applied for, the ruling ably traverses important precedent and concludes that injunctions are important in enforcing environmental compliance and consequently, the life – saving right to a clean, safe and healthy environment in Zambia. The Court was rightly mindful that at that juncture, it had not been called upon to make a final determination on the merits of the entire case, but rather decide whether on the facts before it “there was a probability that the Appellants were entitled to relief” in the form of an interim injunction. The Court analysis progressed to its logically conclusion that the five Respondent investors were “perpetuating a breach in relation to an environmentally sensitive area in line with the Constitution and the Environmental Management Act, which in itself, amounted to a serious question to be tried”.

In summing this commentary, it must give immense pride to every Zambian, whether environmentally inclined or not, that one of the country’s apex courts, the Court of Appeal, recognises that:
Disputes to do with the environment reside in a hallowed place and should enjoy the principles that apply to loss of land where one does not have to prove irreparable injury…once damaged, the environment, like land, cannot quite be restored to its original state and the damage may result in untold suffering for generations”.

There is no doubt in my mind that not only has Forest 27 succeeded in greening the judiciary, but also the law faculties, legal profession and all sectors of the economy in Zambia.

[The author is an environmental law lecturer in the School of Law at the University of Zambia. The views expressed in this article are, however, those of the author and may not reflect her institutional affiliation.]

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