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By Mutuso Dhliwayo, Zimbabwe Environmental Law Association (ZELA)
Introduction/Background
The Stockholm +50 international meeting was held from the 2nd -3rd of June 2022.[1] It was held under the theme “A healthy planet for the prosperity of all: Our responsibility, our prosperity.” The meeting was based on the three leadership dialogue themes namely reflecting on the urgent need for actions to achieve a healthy planet and prosperity for all[2], achieving a sustainable and inclusive recovery from the Coronavirus (COVID-19 Pandemic),[3] and accelerating the implementation of the environmental dimension of sustainable development in the context of the decade of action and delivery for sustainable development[4]. The Post 2020 Global Biodiversity Framework meeting was also held from the 21st -26th of June 2022.[5] In all these meetings, climate change was recognised as one of the triple planetary threats alongside biodiversity loss and pollution. In November, States, Governments, Civil Society Organisations, Community Based Organisations , Faith Based Organisations, and the private sector will gather in Egypt for COP27, where again, the focus will be on the impacts of climate change and how the globe can collectively respond to the threat it poses.
Climate change is no longer being regarded as an environmental issue but as a human rights and developmental issue that affects several rights that are provided for under national, regional, and international law. On October 8, 2021, the United Nations Human Rights Council adopted a resolution for a clean, healthy, and sustainable environment. Climate change has the potential to and is undermining the realization of rights and freedoms provided for under national, regional, and international law. These rights include the right to life, right to health, right to development, right to food, right to water, and the right to shelter among other rights. In Zimbabwe’s case, Sustainable Development Goals, Vision 2030, and the National Development Strategy 1, will not be met if the climate change scourge is not addressed. Development and enactment of laws and policies are a very important suite of actions that can be taken as a way of dealing with the threats of climate change. The objective of this article is therefore to make an urgent call for the enactment of a Climate Change Act by the Government of Zimbabwe.
Zimbabwe has already shown its commitment to addressing climate change. This commitment is reflected both at the international and national levels. At the international level this is through the United Nations Framework Convention on Climate Change (UNFCCC), The Kyoto Protocol and The Paris Climate Agreement. At the national level there are several laws, policies and strategies related to climate change. These include the Constitution, the Environmental Management Act, the National Climate Policy, the National Climate Change Response Strategy, the Renewable Energy Policy, the National Adaptation Plan (NAP), the Long-term Greenhouse Gas Emissions Strategies (2020-2050), and the Nationally Determined Contributions (NDCs). However, despite all these good efforts, a fundamental grounding in a specific, holistic climate change legislation in the form of a Climate Change Act , is still missing. This will ensure that efforts are actually implemented on the ground.
Rationale for a Climate Change Act
While Zimbabwe has shown its commitment to addressing climate change both at the international and national level, the enactment of a Climate Change Act is the missing link. While commitments at the international level and adoption of policies and strategies are good steps as the Zimbabwean Government has done, the enactment of a Climate Change Act will be the icing on the cake. Commitments at the international level only become part of national legislation if they are domesticated due to the principle of sovereignty and also based on section 327 of the Constitution. A policy is a purposeful course of action or decisions that are taken by those with a responsibility for a given policy area with the aim of addressing issues and advancing towards specific objectives.[6] The policy is usually in the form of statements and pronouncements or formal positions on an issue. It is these statements or formal positions that determine implementation. In that regard, a policy is a set of principles that guides course or plan of action. The biggest weakness of policies is that they do not bestow rights or entitlements that can be enforced in a court of law hence the need for an Act. Also while both the Constitution and the Environmental Management Act have provisions on environmental rights as human rights, climate change is broader than environmental rights hence the need for a specific Act dealing comprehensively with climate change and the range of rights that it affects.
The importance of a specific climate change Act in dealing with the impacts of climate change is aptly captured by Christiana Figueres who noted the following “Domestic legislation on climate change is the absolutely critical, essential lynchpin between action at the national level and international agreements”.[7]The enactment of a Climate Change Act is thus critical because:
- It will help guide Zimbabwe’s mitigation and adaptation measures to climate change and coordination of adaptation and mitigation measures. It will also help to guide national and subnational responses to climate change complementing existing laws, policies, and strategies.
- It will help to define responsibilities for different stakeholders that include Government Ministries, Departments and Agencies, local authorities in the form of urban councils, and rural district councils who all have an important role to play in climate change and how they can work together effectively.
- It will provide a legal and regulatory framework for holding the government and the private sector accountable for emissions that contribute towards climate change and prevent other harmful activities that result in GreenHouse Gas (GHG) emissions.[8]
- It will also provide the basis for creating institutions and defining their roles and mandates in the fight against climate change through adaptation and mitigation and mechanisms for resources that are required to ensure that environmental rights and other human rights that are provided for under the Environmental Management Act, the Constitution and other related laws are realized.
- It will bring more legal certainty and transparency to the country’s climate change commitments at the international level as reflected through Nationally Determined Contributions (NDCs), global stock takes and transparency reports every five years. This will help to accelerate the transition from fossil fuels as a source of energy to clean energy as reflected in the Renewable Energy Policy and the National Development Strategy 1. A solid regulatory framework in the form of a Climate Change Act will also enhance investments negotiations with development partners
- Lastly, it will empower Civil Society Organisations (CSOs), Community Based Organisations (CBOs) and Environmental Human Rights Defenders (EHRDs) and other frontline public interest lawyers in their work to promote and advocate for climate justice so as to have a just transition as this will be enforceable in domestic courts. Legal action is a very important tool in promoting climate justice and the fight against climate change. Courts can help in the enforcement of national commitments by countries through NDCs and further strengthen national ambitions. However, litigation as a tool is weak in the absence of national legislation in the form of a Climate Change Act.
The enactment of a Climate Change Act now is the most logical thing. The Government of Zimbabwe has already taken several important steps that lay the foundation for a Climate Change Act through the enactment of several laws that have implications on climate change and the adoption of several policies. So, a Climate Change Act will now show that Zimbabwe’s actions are not a knee-jerk reaction or impulse response driven by global trends in climate change legislation but the result of well-considered planning processes.
By enacting a Climate Change Act, Zimbabwe will be following in the footsteps of several countries that have followed their commitments at the international level through the adoption of policies and then complete the cycle through the enactment of a specific Climate Change Act. These include Kenya which has a Climate Change Act of 2016, Uganda which has a National Climate Change Act of 2021, and Nigeria which also has a Climate Change Act of 2021. South Africa is in the process of developing a Climate Change Act through the Climate Change Bill which is currently before Parliament.[9] The good thing is that there is a shared understanding and political will for a Climate Change Act.[10] This political will is also further reflected in the Memorandum to Cabinet on Principles of the Climate Change Bill.[11]
Conclusion
The need and urgency for a Climate Change Act cannot be overemphasized as evidenced by the various detrimental impacts climate change has on the country. Zimbabwe has a strong foundation for the enactment of a Climate Change Act. While efforts are already underway through the Memorandum to Cabinet on the Climate Change Bill, the main objective of this article is to show that Zimbabwe cannot afford to delay any further. Stakeholders must build on this momentum to make sure that the Bill becomes law. However, the Bill must have strong provisions that will enable it to be effective and efficient. These include strong and deterrent penalties and enforcement mechanisms, set up principles that will guide climate action in the country, clear emission targets that will enable Zimbabwe to fulfil its commitments, and provisions on access to information and accountability. It must also have strong funding mechanisms, and this should be provided by the treasury rather than relying on international financing which may not be forthcoming or have onerous conditions.
[1] This was held in Stockholm, Sweden. It was held to commemorate 50 years after the adoption of the Stockholm Declaration on the Human Environment, held in 1972 in Stockholm, Sweden. It was co-hosted by the Governments of Sweden and Kenya.
[2] Leadership Dialogue 1
[3] Leadership Dialogue 2
[4] Leadership Dialogue 3
[5] IUCN’s Position on Post 2020 Global Biodiversity Framework, 2022. Convention on Biological Diversity. The fourth meeting of the Open-Ended Working Group on the Post -2020 Global Biodiversity Framework, 21-26 June 2022, Nairobi, Kenya.
[6] Borrini Feyerabend et al 2004, Keely and Scoones 2003
[7] Former Executive Secretary of the United Nations Framework Convention on Climate Change, 2013. She made these remarks while addressing the first Globe Climate Change Legislation Summit.
[8] Center for Environmental Rights, 2022. What is the Climate Change Bill and Why is it Important?
[9] Republic of South Africa, 2022. Climate Change Bill (B9-2022)
[10] https://www.herald.co.zw/climate-bill-on-cards-speaker/
[11] Honourable N.M Ndhlovu, 2022. Minister of Environment, Climate , Tourism and Hospitality Industry