A Critical Review of Some Issues and Essential Elements in Constitutional Environmental Rights in an African Context with some Illustrations from South Africa and Eswatini

Abstract

Recent studies have revealed that the jurisprudence of constitutional environmental rights and provisions is relatively new. The aim of this chapterwas to review and synthesize literature on the underlying fundamental principles and trends in constitutional environmental rights in Africa with reference to South Africa and Eswatini. Consequently, there are three recognized approaches to environmental rights: anthropocentric (people-centred), ecocentric (environment-centred) and theo-cultural and theocentricism (of culture and religion). Types of environmental rights can be procedural, substantive and solidarity. In addition, categories of environmental rights include civil and political rights also known as negative rights (enforceable) and socio-economic rights sometimes called positive rights (not easily enforceable and requires state resources). Several national, regional and international policies and legislation support the development and enforcement of environmental rights. The African Charter on Human and Peoples Rights is significant for African countries.

Essential elements for the fulfilment of environmental rights include: public participation, collection and dissemination of environmental information, development and implementation of environmental laws, policies and programmes, environmental compliance and enforcement, provision of environmental infrastructure, and establishment of environmental partnerships and environmental education. In this review, Africa, South Africa and Eswatini in particular, were found to have adopted the concept of constitutional environmental rights and provisions to varying degrees. Consequently, there are policies and legislation in place to support the enforcement of environmental rights.