Saving the Serengeti: Africa’s New International Judicial Environmentalism

Table of ContentsI. Introduction 388II. The Rise of Africa's International Courts and Their Re-Repurposed Mandates 390III. The Serengeti Case and How it Illustrates Environmental Repurposing of Africa's International Courts 397A. Tanzania: From Environmental Conservationism to Big Development Projects 398B. AN AW and the Filing of the Serengeti Case 402C. International NGO Opposition to the Serengeti Road 404D. The Serengeti Case in the East African Court of Justice 406IV. Judidal Environmentalism in Additional African International Courts 414A. Social-Economic Rights and Accountability Project v. Federal Republic of Nigeria 414B. SERAC & CESR v. Nigeria 419V. Judicial Environmentalism in Two African National Courts 422A. Friends of Lake Turkana Trust v. Honorable Attorney General of Kenya (sued on behalf of the Government of the Republic of Kenya) and Kenya Power & lighting Company Ltd 422B. Appellants v. Zambian Government and Mwembeshi Resources Ltd., High Court of Lusaka, Zambia 427VI. Features of International Environmental Judicialism and Its Theoretical Implications 431A. Theoretical Implications 432VII. Conclusions 436I. INTRODUCTIONIn June 2014, the First Instance Division of the East African Court of Justice (EACJ) issued a permanent injunction barring the government of Tanzania from building a road across the Serengeti National Park, a United Nations Educational, Scientific and Cultural Organization (UNESCO) world heritage site.1 The Appellate Division of the EACJ largely upheld that decision in July 2015.2 This decision (hereinafter the Serengeti case or Serengeti) joined a string of recent decisions issued by Africa's fledgling international courts that have inaugurated a new era of judicial environmentalism. Judicial environmentalism is characterized by expansive interpretations of environmental provisions in regional economic integration and regional human rights treaties. My argument is that these new orders to protect the environment inaugurate a new era of enhanced environmental protection through Africa's international courts. They signal the embryonic stages of using courts to enforce international environmental legal commitments in Africa. This may have lessons for other parts of the world. This paper, as far as I can tell, is the first one that systematically discusses how the decisions of Africa's international courts are pushing the boundaries of judicial enforcement of international environmental law in response to three major developments: First, the decisions of African governments to pursue mega-development projects-such as the Serengeti superhighway, large extractive industry operations, or hydro-electric dams-without regard to the environment or local populations. Second, resistance through judicial processes against mega-development projects through alliances of those directly affected by these mega-development projects at the grassroots level together with global environmental movements. Third, how Africa's international courts, spurred by organized groups bringing these cases to them, have repurposed these trade courts to begin enforcing environmental norms included in regional trade and human rights agreements.These new environmental cases simultaneously expose the possibilities and limits of judicial environmentalism-the possibilities because they have issued unprecedented decisions protective of the environment when government conduct violates treaty-protected environmental rights, and the limits because the final outcomes of these decisions are at this point unlikely to severely dent the commitment of African governments to pursue mega-development projects. …