In May, environmental justice campaigners delivered a petition calling for the African Court of Human and Peoples’ Rights to clarify the obligations of states regarding the climate crisis.
This is a chance to clarify governments’ duties not just to their people today, but to generations tomorrow.
As it stands, states are violating their commitments to the African Charter on Human and People’s Rights by taking unilateral, haphazard and disconnected actions on climate-change mitigation that undermine the collective good of the continent. Kenya and South Africa, for instance, are still pushing forth with their coal-mining plans despite possessing massive potential for clean energy in geothermal and solar respectively.
This is also the case with the unjust carbon-offset deals, devoid of transparency, forced onto people without their participation, consent or goodwill. The deals have obscured and ignored the interests of Africa’s future generations, who have a far greater stake in these issues than the people making them.
If taken seriously, it could be a turning point for climate justice in Africa. If ignored, it will be yet another lost moment
The petition for an advisory opinion is the first relating to climate change to go before the African Court. It was submitted by the Pan African Lawyers Union in collaboration with the African Climate Platform, Environmental Lawyers Collective for Africa, Natural Justice and Resilient40.
The court is widely expected to hear the petition, though its pace of processing advisory opinion requests has tended to vary depending on the complexity and urgency of the matter. Of the four that have been admitted, the quickest turnaround was less than a month, while the longest took two-and-a-half years.
But this is an urgent matter. Advisory or not, the opinion could frame a shared African position – one rooted in justice, grounded in human rights and shaped by the people themselves. If taken seriously, it could be a turning point for climate justice in Africa. If ignored, it will be yet another lost moment.
Climate impacts and human rights in Africa
As early as 2006, the UN Climate Change Conference in Nairobi had declared Africa “the continent most vulnerable to the impacts of climate change”.
That conference predicted that “in the near future, climate change will contribute to decreases in food production, floods and inundation of its coastal zones and deltas, spread of waterborne diseases and risk of malaria, and changes in natural ecosystems and loss of biodiversity”. These impacts, it was said, would have a disproportionate impact on Africa’s vulnerable groups, including women, children and Indigenous communities. In the wake of this realisation, and even before it, countless legally binding instruments were adopted with the aim of protecting these groups from human-rights abuses.
For instance, in 2009, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa offered a framework to assist people displaced by “violations of human rights or natural or human-made disasters”. Also known as the Kampala Convention, it committed African states to ensuring accountability for non-state actors – such as multi-national companies – involved in exploring and exploiting economic and natural resources, leading to displacement.
Now, the ground is shifting fast, and some of the predictions made in 2006 have been realised.
With temperature in Africa increasing slightly faster than the global average, it is estimated that by 2030, up to 118 million people categorised as “extremely poor” in Africa will be exposed to drought, floods and extreme heat unless adequate action is taken.
The impact of these events will, and is already, seriously undermining their basic human rights including the rights to life, a healthy environment, and security of person, as expressed in the African Charter and other agreements.
The petition now awaiting consideration by the African Court draws its arguments from these various charters, conventions, protocols and other relevant legal instruments already recognised by the court.
Based in Arusha, Tanzania, the court is the judicial arm of the African Union. It is one of only three regional human rights courts, the others being the European Court of Human Rights and the Inter-American Court of Human Rights.
The court is the appropriate forum to birth, grow and enforce continental commitments to promote and protect human rights. How it considers a matter tends to receive attention from policymakers and other actors, providing a chance for positive action. It also gives momentum to pursue the issue in the domestic jurisdictions of the 34 states that have agreed to be bound by the court’s authority, as well as all 55 African Union member states that have ratified and acceded to the African Charter.
The African Court is also appropriate for another reason. While it was designed principally to be accessed by states and state-aligned institutions, the charter gives states the option to allow hearings from individuals and non-state actors such as NGOs.
Of the 372 cases filed with the court so far, 331 are from individuals, 22 from NGOs, three from the African Commission on Human and People’s Rights, and only one from a state. One could therefore say that the peoples’ agenda, driven by the people themselves, is dominating the African Court.
With the climate petition increasingly being viewed as a “transformational moment” for African laws on climate justice and intergenerational equity, there could be no better forum to consider it than the people’s own court.
Limits to influence?
Advisory opinions are nonbinding, which severely limits their efficacy. States can essentially ignore them, and the current wave of states turning away from multilateralism does not help their cause.
However, they do offer opportunity to rally around a positive cause. With appropriate goodwill and pressure from the people, advisory opinions offer the best chance to grow good habits away from the force of law. They have been described as “contentious proceedings in disguise” that “constitute a ‘soft’ litigation strategy” and a “particularly useful tool” for small states or non-state actors such as Pan African Lawyers Union and its collaborating institutions.
More often than not, non-state actors wield significant influence in public debates, as well as in shaping narratives, attitudes, opinions and actions. The petition has already galvanised civil society, Indigenous communities and youth.
This has the potential to feed into domestic legislative and policy proposals relating to climate change. More and more countries are beginning to enact climate-related legislation. South Africa’s Climate Change Law, enacted in July 2024, follows similar moves by Nigeria, Kenya, Uganda and Mauritius. The opportunity presented in this petition is one of harmonising the understanding, positions, political goodwill and approaches of African states in confronting this reality.
