ZAMBIAN OPEN UNIVERSITY

DEPARTMENT OF LAW

Name

Email address

Student ID

Program Bachelor of Laws (LLB)

Course name Human Rights Law

Course code LL341

Year Third Year

Semester one

Assignment number Two

Date of submission

Mode of learning

Cell

Lecturer
Introduction

This paper will attempt to discuss the effects and dangers of opening of the open pit mine at the
lower Zambezi national park to both wildlife and tourism section and to the members of the
general as their will be violation of human rights, environmental degradation, deforestation and
climate change. The paper will state the challenges that will be faced by the plaintiffs in
achieving desired outcome.

The Plaintiffs may face a number of legal hurdles in this legal action including;

Burden of Proof

The Plaintiffs may need to establish a causal link between the mining activities and deforestation
in the Lower Zambezi National Park, as well as the violation of constitutional rights. They may
need to provide compelling evidence to prove that the government’s actions or omissions
directly caused the increased rate of deforestation and the endangerment of their rights.

Procedural Issues

The lower court denied the petition on procedural grounds, stating that a tutela was not the
appropriate mechanism for the relief sought by the Plaintiffs. The court suggested that an “acción
popular” would be more suitable. The Plaintiffs may need to address this procedural issue and
convince the court that a tutela is the correct mechanism to protect their individual rights.

Negligence

The Plaintiffs can argue that the government has breached its duty of care by allowing mining
activities in the Lower Zambezi National Park, resulting in deforestation and the emission of
greenhouse gases. They can demonstrate that the government failed to take reasonable steps to
prevent these harmful activities and protect the environment.

Government’s Defense

The government may argue that adequate measures are in place to protect the environment and
that the mining activities are conducted responsibly. They may also claim that economic
development and job creation outweigh the environmental concerns raised by the Plaintiffs. The
Plaintiffs will need to counter these arguments and demonstrate that the government has failed in
its duty to protect the environment and uphold their constitutional rights.

The Plaintiffs may advance the following legal arguments in order to prove that the
government is responsible for the increased rate of deforestation and the violation of
plaintiffs’ rights.

Constitutional Rights Violation

The Plaintiffs can assert that the government’s actions or omissions have directly violated their
constitutional rights to health, food, water, and a healthy

environment. They should provide evidence showing the adverse effects of deforestation and
climate change on their rights and well-being.

Scientific Evidence

The Plaintiffs can rely on the scientific research report from the climate environmental expert,
Chipasha Mulenga1, to establish a causal link between mining activities, deforestation, and
climate change. They may present this evidence to demonstrate that the government’s actions
have contributed to the increased rate of deforestation and the resulting harm to the environment
and their right

The Plaintiffs may claim the following remedies:

Moratorium

The Plaintiffs may request the government to issue a moratorium on the main drivers of
deforestation, such as land grabbing, illicit crops, and illegal resource extraction, until the action
plan is issued.

Action Plan

The Plaintiffs may seek an order requiring the government to present an action plan to reduce the
rate of deforestation in the LZNP to zero by the end of 2026. This plan should be prepared in
consultation with the Plaintiffs to ensure their participation and address their concerns.
1
SciELO SA
http://www.scielo.org.za › scielo
Judicial Mandate in Safeguarding Environmental Rights from the …
Intergenerational Agreement

The Plaintiffs may request the development of an intergenerational agreement between the
government and the Plaintiffs, focusing on measures to reduce deforestation, mitigate
greenhouse gas emissions, and enhance adaptation to climate change in vulnerable cities and
municipalities.

Updated Land Management Plans

The Plaintiffs may seek an order requiring the municipalities around LZNP to update their land
management plans within a specified period. These plans should include actions to reduce
deforestation, enhance adaptation, and mitigate greenhouse gases. Injunction

The Plaintiffs should request an immediate halt to all mining activities and cutting down of trees
in the Lower Zambezi National Park. This may l help prevent further harm to the environment
and protect the Plaintiffs’ rights.

Investigation and Budget Review

The Plaintiffs should ask for an investigation into the illicit activities that generate deforestation
in the Lower Zambezi National Park. Additionally, they should request a review of the budget
for parks to ensure sufficient resources for effective park management.

The United Nations Framework Convention on Climate Change (UNFCCC) 2 recognizes the
importance of protecting the environment and addressing climate change. Article 3(3) of the The
United Nations Framework Convention on Climate Change (UNFCCC) States that the Parties
should take precautionary measures to anticipate, prevent or minimize the causes of climate
change and mitigate its adverse effects. Where there are threats of serious or irreversible damage,
lack of full scientific certainty should not be used as a reason for postponing such measures,
taking into account that policies and measures to deal with climate change should be cost-
effective so as to ensure global benefits at the lowest possible cost. To achieve this, such policies
and measures should take into account different socio-economic contexts, be comprehensive,
cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and comprise
2
The United Nations Framework Convention on Climate Change (UNFCCC https://www.google.com/url?
sa=t&source=web&rct=j&opi=89978449&url=https://unfccc.int/resource/docs/convkp/
conveng.pdf&ved=2ahUKEwiXwfKCgd-
BAxUsSEEAHYMcCqEQFnoECCQQAQ&usg=AOvVaw18CgGOFIVfRr7eTa24uwdY
all economic sectors. Efforts to address climate change may be carried out cooperatively by
interested Parties.The Plaintiffs May therefore have a strong argument that the government’s
actions violate the principles and objectives of the UNFCCC.

The Aarhus Convention3, which Zambia is a party to, emphasizes public participation in
environmental decision-making. Article 6 of it states that this Convention shall not require any
derogation from existing rights of access to information, public participation in decision-making
and access to justice in environmental matters. The Plaintiffs can rely on this convention to
support their argument that they should have been involved in the decision-making process
regarding mining activities in the national park.

Article 256 of the Zambian constitution 4 states that a person has a duty to co-operate with State
organs, State institutions and other persons to maintain a clean, safe and healthy environment;.
Ensure ecologically sustainable development and use of natural resources;respect, protect and
safeguard the environment and prevent or discontinue an act which is harmful to the
environment. The Plaintiffs can argue that their constitutional rights have been violated due to
the government’s failure to protect the environment in the Lower Zambezi National Park.

Article 257 of the Zambian constitution 5 states that the State shall, in the utilization of natural
resources and management of the environment .protect genetic resources and biological
diversity;.implement mechanisms that minimize waste; promote appropriate environment
management systems and tools; encourage public participation, protect and enhance the
intellectual property in, and indigenous knowledge of, biodiversity and genetic resources of local
communities;ensure that the environmental standards enforced in Zambia change essential
benefit to citizens; and establish and implement mechanisms that address climate change.

The Environmental Management Act6 provides for the protection and conservation of the
environment in Zambia. The Plaintiffs can refer to this statute to support their argument that the
government has a legal duty to protect the environment and prevent deforestation. In David
Ngwenyama v Attorney General Mwembeshi Resources Limited 7 where The respondent had
3
The Aarhus Convention
Convention on Access to Information, Public Participation in Decision …
4
Article 256 of the Zambian constitution
5
Article 257 of the Zambian constitution
6
The Environmental Management Act No. 12 of 2011
7
Appeal no. 1 of 2020
applied to relevant authorities to commence mining in the lower Zambezi National Park and the
Minister of Lands, Natural Resources and Environmental Protection granted it permission to
commence large scale mining activities in the national park. Following the Minister's approval,
the appellant filed a notice of appeal pursuant to the Environmental Management Act, 20111
because he was of the view that the Minister made a wrong decision as he ignored the findings
and recommendation of the Zambia Environmental Management Agency. The appellant was
further of the view that the said decision would undermine the environmental laws. He also
contended that the Minister's decision was wrong as the second respondent's mining licence was
issued before an
environmental impact assessment was conducted and as such, it could not carry out mining
activities in the lower Zambezi National Park. The court ruled in favor of the respondent.
The Mines and Minerals Act8 governs mining activities in Zambia. The Plaintiffs can argue that
the government has violated the provisions of this act by allowing mining in a protected area like
the Lower Zambezi National Park.

In the case of Kangwa & Others v Zambia Environmental Management Agency & Others
(Appeal 40 of 2012) [2014] ZMSC 143 (30 October 2014) 9, the Zambian Supreme Court
recognized the importance of public participation in environmental decision-making.

In the case of Moses Lukwanda and 9 others v Zambia Airforce Projects Limited and 7 others
CAZ/08/323/201910, the Court emphasized the need to protect the environment and upheld the
rights of individuals to a clean and healthy environment.

In the case of R (Client Earth) v. Secretary of State for Environment, Food and Rural Affairs 11,
the Court recognized the government’s duty to take action to mitigate climate change and
protect the environment.

8
The Mines and Minerals Act
9
Kangwa & Others v Zambia Environmental Management Agency & Others (Appeal 40 of 2012) [2014] ZMSC 143
(30 October 2014)
10
Moses Lukwanda and 9 others v Zambia Airforce Projects Limited and 7 others CAZ/08/323/2019
11
Climate Change Litigation Databases
https://climatecasechart.com › client…
Client Earth v. Secretary of State
 In the case of Urgenda Foundation v. The Netherlands 12, the Dutch Supreme Court ruled that the
government has a legal duty to take more ambitious measures to reduce greenhouse gas
emissions.

Conclusion

In conclusion, this paper has discussed the effects of authorizing mining actives in lower
zambezi and the legal hurdles the plaintiffs may face during the proceedings of the matter. The
plaintiff may among other things find difficulties in adducing evidence to prove their case.

BIBLIOGRAPHY

Books

James R. May and 1 more, Human rights and the environment TNDALU
https://www.tndalu.ac.in

Legislations
12
Climate Change Litigation Databases
https://climatecasechart.com › urgen…
Urgenda Foundation v. State of the Netherlands
The Constitution of Zambia

The Mines and Mineral Development Act

The Environmental Protection and Pollution Control Act

The Aarhus Convention

The united Nations Framework Convention on climate change

Cases

David Ngwenyama v Attorney General Mwembeshi Resources Limited (2020) App No. 1

Urgenda Foundation v. The Netherlands

R (Client Earth) v. Secretary of State for Environment, Food and Rural Affairs

Moses Lukwanda and 9 others v Zambia Airforce Projects Limited and 7 others
CAZ/08/323/2019

Kangwa & Others v Zambia Environmental Management Agency & Others (Appeal 40 of 2012)
[2014] ZMSC 143 (30 October 2014