UTAFITI 18 (2023) 1–23

Journal of African
Perspectives

brill.com/utaf

Emerging Trends in Addressing Climate Change

through Litigation in Tanzania

Hamudi Ismail Majamba

Associate Professor of Law, Department of Private Law, University of
Dar-es-Salaam School of Law, Dar es Salaam, Tanzania
hmajamba@gmail.com

Abstract

Climate change litigation (climate litigation) has increased worldwide partly due
to governments enacting laws to comply with global climate change agreements, as
well as courts playing a pivotal role in developing related precedents. By analysing
Tanzania’s climate litigation in the context of worldwide trends, one may observe that
the courts have addressed critical aspects of climate litigation, although their doing so
has not been fully acknowledged in some of the contemporary literature. Also, unlike
in other jurisdictions, the courts in Tanzania have not referred to numerous instructive
precedents. This shortcoming may be attributed partly to the lack of a comprehensive
climate change law, the legal impediments to instituting public interest litigation, and
a general lack of enthusiasm for researching and probing current court precedents
on the part of counsel and the judiciary. This commentary advocates enacting com-
prehensive climate change legislation and enhancing the capacity of civil society,
non-governmental organizations, the Bar, and the judiciary to engage with contempo-
rary developments in climate change impacts and related litigation.

Keywords

climate change – law – climate litigation – Tanzania

Published with license by Koninklijke Brill NV | doi:10.1163/26836408-15020070

© Hamudi Ismail Majamba, 2023 | ISSN: 0856-096X (print) 2683-6408 (online)
2 Majamba

Climate Change in Tanzania: A Synopsis

‘Climate change’ refers to rapid variations in weather patterns resulting in

significant increases in temperature. The variations presumed to be caused
predominately by human activities through burning fossil fuels, generating
greenhouse gas emissions that cloak the earth and trap the sun’s heat, caus-
ing the earth’s temperatures to rise. Other impacts of climate change manifest
as intense droughts, rising sea levels, storms, loss of biodiversity, and scarcity
of water.1
The most noticeable climate variables observed in Tanzania include an
upsurge in frequency and intensity of extreme weather patterns, including
strong winds, record breaking rainfall, natural disasters, and increasing tem-
peratures. The distinct impacts of these and the country’s overall vulnerabil-
ity to such calamities have been captured by the National Climate Change
Response Strategy 2021–2026.2 The effects of climate change have impacted
Tanzania variously, manifesting in extreme weather patterns evidenced by
uncharacteristically high temperatures and heavy rainfall, resulting in both
floods and droughts over the past five years.3 Different sectors of the country’s
economy have been negatively impacted by climate change, including wild-
life management, tourism, agriculture, energy, fisheries, water management,
marine activities, transport infrastructure and industry.4
The government has enacted legislation to address climate change related
challenges as a means of salvaging the economy.5 The government has also rat-
ified climate change related multilateral environmental agreements (MEAs);
these include the United Nations Framework Convention on Climate Change
(UNFCCC), the Paris Agreement, and the Convention on Biological Diversity.6
The Tanzanian government’s effort in implementing the UNFCCC is also exhib-
ited by the recent promulgation of the Environmental Management (Control
and Management of Carbon Trading) Regulations of 2022.7 These seek to:

1 United Nations. Climate Action. n.d. What is Climate Change? Accessed 12 March 2023 at
https://www.un.org/en/climatechange/what-is-climate-change.
2 United Republic of Tanzania Vice President’s Office, 2021 pp. 32–36.
3 Ibid, pp. 27–37.
4 Ibid, pp. 37–61.
5 Ibid, pp. 12–16.
6 Ibid, pp. 23–27. The Convention on Biological Diversity was opened for signature on
5 June 1992 at the United Nations Conference on Environment and Development (the Rio
Earth Summit).
7 United Republic of Tanzania. 2022.

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Climate change and climate litigation in Tanzania 3

provide for legal framework necessary for ensuring sustainable environ-

mental development by enhancing environmental conservation and
(the) country’s contribution towards global efforts on greenhouse gases
emissions reduction.

Climate change litigation (also referred to as ‘climate litigation’, to be used

henceforth in this article) has been defined differently. In some cases, it has
been broadened to include issues and facts directly addressing parties’ actions
or inactions that have direct impacts upon climate change. In other cases, the
definition has been confined to litigation with typical environmental dimen-
sions but with climate change related impacts.8 The limitation of the definition
has removed other potential climate-related lawsuits, thus attracting criticism
which includes concern over restrictions in the analysis of cases imposed by
a definition which is too narrow; e.g. “… only small, isolated pieces of the vast
litigation landscape …” are studied. In consequence:9

What is largely missing from the scholarly assessment are the dozens
upon dozens of cases of climate change litigation matters which may
seem mundane when taken individually, but which can inform scholarly
evaluation when considered cumulatively. The scholarship has equally
failed to identify and broadly assess what has not been the subject of
climate change litigation. Without a complete picture of what has and
has not been within the sweep of climate change litigation, it is difficult
to offer a robust evaluation of the past, present, and future of climate
change jurisprudence.

Litigation that is associated with climate change in Tanzania has primarily

focused on conservation and protection of the environment and the nation’s
natural resources. However, this trend has not been evaluated comprehen-
sively in the contemporary literature. Further, the contemporary literature fails
to include an evaluation of counsels’ submissions in espousing climate litiga-
tion throughout economically developing countries generally and in Tanzania
in particular. This article seeks to fill this gap and hopefully to trigger further
insights about the recently developing trends in climate litigation. An over-
view of developments of climate litigation worldwide will next set the founda-
tion for this discussion of the emerging trends in Tanzania.

8 United Nations Environmental Programme (UNEP). 2021. and Marcus Burianski et al. 2021.
9 David Markell and J.B. Ruhl, 2011, pp. 16–18.

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In the context of this article, climate litigation is not limited to lawsuits

whose key issues in terms of fact and law are based substantially on climate
change effects, mitigation, or adaptation. Nor is it confined to key words
such as ‘climate change’ and ‘global warming’ usually identified with such
litigation.10 The definition adopted captures the often overlooked “vast
landscape.”11

Climate Litigation: Overview of Global Perspectives

Historically, climate litigation has addressed various branches of the law such
as tort, commercial law, human rights and criminal law.12 Its history has been
documented with different paradigms focusing on continental and regional
developments. In Europe, climate litigation has been traced to administrative
law and the law of tort.13 It has also been associated with locus standi, constitu-
tional and human rights cases predominately instituted by non-governmental
organizations (NGOs) and civil society organization (CSOs).14 In China, the
genesis of such litigation has also been traced to the law of tort via public
interest litigation.15 In India and the United States, the development of such
litigation has equally been associated with principles of common law in the
law of tort.16 Today, climate change law, emerging from this history, is provided
for in national laws and MEAs worldwide. In turn, this development has led to
a dramatic increase in climate litigation globally.17
Climate litigation has further developed through different modes of framing
climate vulnerability suits. Thus, in some instances noted in this article, court
cases that do not specifically mention the words ‘climate change’ or ‘global
warming’ have implications for climate change and should be classified as cli-
mate litigation suits. Included in this category are issues arising from disputes
related to land use, access to water, and local development, which may be dif-
ficult to detect and thus ignored.18 Purposefully selected climate litigation suits

10 United Nations Environment Programme (UNEP). 2021.

11 D. Markell and J.B. Ruhl, op.cit., p. 18.
12 Harvard Law Review, 2022.
13 Kleoniki Pouikli. 2021.
14 G. Sethi, 2020.
15 Yue Zhao, et al. 2019.
16 Arindam Basu, 2011.
17 N. Michal, et al. 2015.
18 B. Ohdedar (Ed). 2022.

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from the agriculture, construction, labour and business sectors worldwide

unveil the evolving trends in Tanzania.
In India, the 2015 case of Swaraj Abhiyan v Union of India et al. decided
by the Supreme Court of India exhibits the nexus between climate change
and agriculture through the lens of agricultural drought. The court observed
that the drought was triggered by inadequate rainfall and changing weather
conditions, noting that this is a normal part of climate variability.19 The court
also addressed financial implications of agricultural drought as the parties
had prayed for crop loans and timely payment and compensation for crop
loss.20 Similarly, the 2014 Indian case of Guarav Kumar Bansal v Union of India
highlights the nexus between climate change, agriculture, and employment
relations. It also illustrates the locus standi challenge and the extent to which
governments can be held accountable to obligations under MEAs in climate
litigation.21
Climate vulnerability suits have also been witnessed in the business world.
Examples include the 2022 case involving a firm in the United Kingdom, as well
as another case in Poland during 2018; in both, company directors were sued by
shareholders for not implementing a climate strategy. These suits, respectively,
were in line with the Paris Agreement, and the annulment of a resolution
consenting to construction of a coal-fired power plant.22 Another case in 2021
involved the New Zealand Transport Agency being taken to task by claimants
who alleged that the Agency’s decision to fund construction of a road violated
the government’s commitment to the Paris Agreement as well as the coun-
try’s own climate change law. Subsequently, the government of New Zealand
abandoned the construction of the road.23 Also in New Zealand during 2021,
law students challenged the government’s decision to grant permits for oil
and gas exploration. The plaintiffs alleged that the government’s decision was

19 Swaraj Abhiyan v Union of India. Writ Petition (Civil) No. 857 of 2015 Supreme Court of
India. Accessed 16th March 2023 at https://indiankanoon.org/doc/53698039/ (See para-
graphs 40, 41 and 52 of the judgment).
20 Ibid, paragraphs 7 and 8 of the judgment.
21 Guarav Kumar Bansal v Union of India, before the National Green Tribunal, Principal
Bench, New Delhi. Original Application No. 498/2014. Accessed 16th March 2023 at http://
climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2015/20150
723_Application-No.-4982014_petition.pdf.
22 ClientEarth v Board of Directors of Shell and ClientEarth v Enea. Accessed 16th March
2023 at http://climatecasechart.com/non-us-case/clientearth-v-board-of-directors-of
-shell/ and https://climate-laws.org/geographies/poland/litigation_cases/clientearth-v
-enea, respectively.
23 All Aboard Aotearoa v Waka Kotahi. Accessed 16th March 2023 at http://climatecase
chart.com/non-us-case/all-aboard-aotearoa-v-waka-kotahi/.

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inconsistent with the Paris Agreement and national law.24 And prior to this
in 2017 in the Philippines, the government’s Climate Change Commission had
been brought into court on allegations of violating the national constitution by
failing to enact climate-related transportation measures.25
The impacts of climate change causing serious environmental harm
have resulted in climate litigation on the African continent as well; however
these instances have not been amplified through review in the contemporary
literature.26 In East Africa there are relatively fewer reported cases; these are
from Kenya, Uganda and the East African Court of Justice, instituted by NGOs
and environmental law activists, but they have not been given due attention
despite their critical role in supporting climate litigation laws.27
The progressive provisions in comprehensive climate change laws of Kenya
and Uganda which make explicit reference to climate change litigation have
not as yet been acknowledged. Sections 23 and 23 (3) of the Climate Change
Act of Kenya, 2011 provides for litigants’ right to institute climate change suits
without proving loss or injury. Equally, section 26 of Uganda’s National Climate
Change Act, 2021 permits individuals to commence suits against the govern-
ment and to seek relevant remedies, including compensation. Litigants may
also seek orders requiring government departments to comply with its com-
mitments under MEAs. Section 26 (3) of the Act does not require a claimant to
prove damages. The UNFCCC, Kyoto Protocol, and the Paris Agreement have
been domesticated in Uganda. They appear in the Schedule of the Climate
Change Act and are therefore part of the law on climate change. In the case of
R Maughan v Her Majesty Senior Coroner for Oxfordshire [2020] UKSC 46, the
court held that schedules of a statute are part of the law.28 The climate change
framework laws of Uganda and Kenya have set a good foundation for climate
litigation in these countries, with NGOs and CSOs using them to develop litiga-
tion in this area.
In the East African Community (EAC), the case often cited in contemporary
literature on climate litigation is the 2020 Center for Food and Adequate Living
Rights et al. v Tanzania and Uganda before the East African Court of Justice

24 Students for Climate Change Solutions v Minister of Energy & Resources. Accessed
16th March 2023 at http://climatecasechart.com/non-us-case/students-for-climate-solu
tions-v-minister-of-energy-and-resources/.
25 Victoria Segovia et al. v Climate Change Commission. G.R. No. 211010, March 17, 2017.
Accessed 13th March 2023 at https://www.scribd.com/document/379534730/Victoria
-Segovia-vs-the-Climate-Change-Commission.
26 Marcus Burianski, et al. 2021.
27 Odoo Collins Odote, 2013.
28 United Kingdom Supreme Court, 2020. See also James George, 2022.

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(EACJ).29 In this case, four CSOs have sued the governments of Uganda and
Tanzania for allegedly overlooking environmental concerns within the EAC
framework and for approving a cross border crude oil pipeline.30 The case is
still pending at the EACJ.31 However, construction of the pipeline has been
approved and is about to commence.32 Hopefully the court will be invited to
address the EAC Climate Change Policy, which commits the agreement’s par-
ties to address negative impacts of climate change.33

Climate Litigation in Tanzania

Climate litigation discussed in this article focuses only on Mainland Tanzania

and does not include Zanzibar. This is because climate change is not among the
items constituting Union matters within the framework of the Constitution
of the United Republic of Tanzania.34 Thus, Zanzibar has its own legal frame-
work to address environmental litigation (including climate change), except
for MEAs (foreign affairs issues) which count among Union matters under the
Constitution.35 This article does not focus on all sector-related climate change
court cases that have been determined by courts in Tanzania. It is confined
to courts of record, the High Court and Court of Appeal of Tanzania (CAT)
whose decisions form the sources of law in accordance with the common law
doctrine of stare decisis (precedent) upon which the legal system of Tanzania
is founded.36 The cases (both civil and criminal) discussed have been litigated
under laws relating to conservation of wildlife and forests and business and
labor relations.
Sources of climate change law, which are essential for climate litigation in
Tanzania, consist primarily of MEAs, national laws and precedents. The corpus
of MEAs comprises of the UNFCC, the Kyoto Protocol and the Paris Agreement
ratified by the government in 1996, 2002 and 2018, respectively.37 At the
national level, there exist sector laws that have a direct bearing on climate

29 East Africa Court of Justice. 2020.

30 https://www.eacj.org/?page_id=5986&fwp_paged=6.
31 https://www.eacj.org/?page_id=1845.
32 Christopher E. Smith, 2023.
33 United Nations. Department of Economic and Social Affairs, 2011.
34 Constitution of the United Republic of Tanzania, 1977, Cap. 2. See Article 4 and the
1st Schedule.
35 Ibid, Item 2.
36 G.F.A. Sawyerr and J.A. Hiller. 1971.
37 United Republic of Tanzania Vice President’s Office, 2021, p. 25.

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change but do not necessarily explicitly mention ‘climate change.’ Some just
make reference to MEAs ratified by the government. These include laws regu-
lating management of the environment, land development, urban planning,
public health, and mining. Others include laws regulating water resources,
marine parks, wildlife, fisheries and forests.38 Thus, court cases filed under the
provisions of these sector laws have, by necessarily implication, a bearing on
climate change.
Deforestation and changes in land use are the main causes of climate
change in Tanzania.39 Numerous court cases have addressed the need to pro-
tect forests. In this context, one of the celebrated pronouncements made by
the Court of Appeal of Tanzania in a criminal law case that has a bearing on
climate change is Tenende s/o Budotela et al. v Attorney General.40 In conclud-
ing, the court supported the Government’s Order requiring villages to vacate
a Forest Reserve which had been seriously deforested; the court held that no
customary rights can exist in Forest Reserves. The court observed:41

We take judicial notice of the fact that forests must be protected by law to
prevent environmental destruction, deforestation and drought which, if left
unchecked would endanger and threaten the survival of mankind, fauna,
flora, birds, insects and other creatures and turn our country into a desert.
For this reason, the courts of law would not support trespass into forests,
be it Iiomero Hill Forest Reserve or elsewhere [emphasis added].

By taking judicial notice of factors that have climate change implications, the
court acted sua moto (on its own motion), not having been moved by counsel.
In doing this, the court incidentally acknowledged that the destruction of the
environment is ancillary in producing the impacts of climate change which
“threaten the survival of humankind.” However, the motion made no specific
reference to this critical causal linkage despite the existence of many authori-
ties confirming it.42
The conservation and preservation of culture and heritage are also crucial
factors in protecting against the negative impacts of climate change.43 The
High Court of Tanzania has had several occasions in order to remind prosecu-
tors to ensure that they equip themselves adequately in prosecuting wildlife

38 Ibid, section 2.1.2.

39 Ibid, p. 10.
40 Court of Appeal of Tanzania at Tabora. 2023.
41 Ibid, p. 15 of the judgment.
42 R.E. Green, et al. 2001.
43 Sesana, E. et al. 2021.

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crimes (wildlife being a culture and natural heritage, whose destruction has a
bearing on climate change). For instance, in the 2017 case of Yamungu Kaburu
Moshi v Republic, the judge observed that wildlife and the environment of
Tanzania must be conserved and protected by the court. She commented that
the court had a duty to protect these zealously and admonished prosecutors by
stating (Criminal Appeal No. 56, 2017: pp. 5–6):

The matter was technically well investigated but poorly prosecuted … It

is a serious offence in that the appellant was facing the offence of endan-
gering the country’s seriously [sic] protected natural resources … There is
a need of prosecution [sic] being equipped with knowledge and be seri-
ous [sic] on issues of National Heritage.44

These observations about the prosecutor’s shortfalls made by the judge (which
should equally apply to the bench as well) find support in the United Nations’
initiatives in addressing climate change: the UN has likewise encouraged pros-
ecutors in wildlife crimes to use the climate change paradigm, while acknowl-
edging the prosecutor’s incapacity in this regard.45 If the court in this 2017 case
had made reference to such observations, it might have opened up frontiers for
further developing climate litigation in this area.
Courts in Tanzania have equally dealt with cases in civil matters of a com-
mercial nature; some of these are employment disputes and other suits involve
local governments’ attempts to conserve natural and environmental resources;
all of them reflect the direct bearing of climate change. Kilimanjaro Plantation
Ltd v Nicolaus Ngowi is a good case between an employer and employee to
demonstrate how climate change was referred to, albeit in passing. Among
other reasons, the applicant (employer) claimed to have adjusted the respon-
dent’s (employee) working hours on a coffee plantation due to unfavourable
changes in weather patterns. However, since counsel for the applicant failed
to refer to worldwide climate litigation precedents to support his arguments,
the court consequently was not properly guided, and so merely re-iterated the
counsel’s submission as follows:46

On the ground of refusal to adjust to working hours, the advocate for the
Applicant submitted, such change was due to the rainy season (climate
change). In that regard coming within the normal hours would mean, the

44 High Court of Tanzania at Dar es Salaam, 2017.

45 United Nations Office of Drugs and Crimes (UNDOC), n.d. p. 25.
46 High Court of Tanzania at Moshi. 2020, p. 6.

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employer would lose 2 hours to the respondent who would be idle. The
coffee would not be able to dry as there will be no sun in the early hours.
The advocate referred this court to section 3(1) of ELRA [the Employment
and Labour Relations Act] that, the principal objects of the Act is to pro-
mote economic development through efficiency geared at high produc-
tivity. An employee had to work in order to achieve this objective.

Counsel could have strengthened the submissions by referring the court to

global trends and the government of Tanzania’s initiative, which clearly show
the link between agriculture and climate change, rather than solely depending
on the ELRA. He ought to have referred, for example, to the international legal
framework for agriculture – climate change and related legal tools.47 Further, it
is noted that in Tanzania’s National Agriculture Policy of 2013, there is a need
to address productivity (economic development) in the agricultural sector in
order to address concerns arising from climate change.48 Legal precedents
have also linked climate change and agriculture. For example, in the 2015 case
of Lucian Lliuya v RWE AG litigated in Germany, the applicant, a farmer, sued
the respondent for compensation, for having contributed to climate change,
allegedly knowingly, by emitting huge amounts of greenhouse gases which led
to flooding of toxic water from a nearby lake, affecting the applicant’s farm.
The appellate court noted that the respondent could be held liable for climate
change related damages of its actions that yielded greenhouse gas’s negative
affects on agricultural activities.49
Land disputes determined by Tanzanian courts also demonstrate the trends
in climate litigation. In determining a dispute over land located within a Forest
Reserve, the court in the case of Andrew Mahundo et al. v Permanent Secretary,
MNRT, cited, with approval, albeit by way of obiter, the Court of Appeal of
Tanzania’s observations in Tenende s/o Budotela et al.50 The court should have
referred to recent trends and developments showing the link between drought,
deforestation and climate change in Tanzania and beyond.51 This would have
opened up new frontiers for other cases and might have further developed cli-
mate litigation precedents in the country.

47 See: Food and Agriculture Organization (FAO). 2020. Also: United Republic of Tanzania.
2017.
48 United Republic of Tanzania. 2017.Paragraph 2.23.
49 Essen Regional Court. 2015.
50 High Court of Tanzania at Dar-es-Salaam. 2013, p. 10.
51 Food and Agriculture Organization (FAO) and Ministry of Foreign Affairs (FORMIN),
Finland. n.d. Also see J. Setzer et al. 2021a.

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On the business front, authorities have observed that climate litigation

is likely to impact liability in insurance under commercial general liability
policies.52 The High Court in Tanzania addressed an insurance suit with a
bearing on climate change in AMC Trade Finance (T) Ltd v Sanlaw General
Insurance.53 Part of the claims in this case related to damaged goods stored in
a container at a discharge port; the damage was due to extreme weather condi-
tions. Once again, the court did not have the opportunity to explore this virgin
area, as counsel presented the case without prompting the court to do so. With
some research, counsel would have found authorities who have noted emerg-
ing trends in climate litigation featuring this linkage of climate change with
insurance, and thus could have assisted the court in this regard.54
Courts of law worldwide have also grappled with disputes relating to finan-
cial transactions that have a bearing on climate change. Financial institutions
have been urged to prepare for management of climate risks and subsequent
climate litigation.55 For instance in Tanzania, courts have dealt with disputes
relating to credit facilities and loan agreements executed by financial insti-
tutions that have a bearing on climate change. In Austack Alphonce Mushi
v Bank of Africa (T) Ltd. et al, for instance, the Court of Appeal of Tanzania
determined a dispute arising out of a breach of a loan agreement where a crop
farming project could not proceed as scheduled due to, among other reasons,
bad weather. Thus climate change made it difficult for the client to honour the
credit offered.56 Counsel did not lead the court to address the critical issue
of bad weather (climate change) having been the cause of dishonouring the
credit facilities. Consequently, the court ended up determining the matter
solely on technical issues of civil procedure law.
Similarly, in the case of Justice Ndibandetse v Crdb Bank Plc, counsel for the
appellant failed to properly guide the court after submitting an otherwise good
ground relating to climate change in a dispute concerning a bank loan for pro-
duction of barley.57 The appellant had defaulted in repayment primarily due
to bad weather. The appellant’s counsel ‘abandoned’ this line of argument and
zeroed in on contractual relations instead, diverting the court’s focus away
from climate change related breaches of contract, to move in the familiar ter-
rain of contractual issues.

52 A. Oddy, et al. 2021.

53 High Court of Tanzania at Dar-es-Salaam. 2019.
54 A. Djazayen, 2021.
55 J. Setzer, et al. 2021b.
56 Court of Appeal of Tanzania at Mbeya. 2020.
57 High Court of Tanzania at Moshi. 2021. p. 5.

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The last climate change related disputes analysed in this article that have
been addressed by courts in Tanzania involve mandates of Local Government
Authorities (LGAs) in addressing urban planning and conservation of environ-
mental resources. The reference to specific provisions of laws that were made
by the court in Imagi Mbugi v Songea Municipal Council (Imagi Mbugi) echo
the dangerous impacts of climate change.58 The court in this case, which con-
cerned compliance with urban planning and water laws, stated, inter alia:59

we acknowledge that Regulation 8 of the Water Utilization (General)

Regulations G.N. No. 370 of 1997 prohibits conduct of human activities
within 200 meters of a river bank or within 500 meters of the shoreline of
a natural lake (inland lake), dam or reservoir (water intake).

The court also noted with reference to the Environmental Management Act
(EMA) of 2004:60

In addition, both section 57(1) of the EMA and section 8 of the Water
Utilisation (General) Regulations, GN No. 370 of 1997 prohibit human
activities in water sources.

The court’s approach in Imagi Mbugi was adopted later in Moses Msokwa v
Water Board for Lake Rukwa Basin et al, where the plaintiff was conducting
agricultural activities along a river bank, contrary to the provisions of the EMA
that seek to protect water sources.61 Taking into account the need to mitigate
negative climate change impacts, the court held that the defendant was legally
justified in destroying the agriculture produce cultivated on the river bank.
Interestingly, the EMA, referred to by the court, has clear provisions on cli-
mate change, requiring the government minister to take specific measures to
address climate change impacts in accordance with the UNFCCC and related
Protocols.62 Being a relatively recent decision, one would have expected the
court to have delved into EMA’s provisions to address urban planning issues.
The case of Anthony Mseke et al. v The Chief Executive National Environment
and Management Council of Tanzania et al. also highlights local government

58 Court of Appeal Mwanza Registry. 2020. Civil Appeal 168 of 2020 [2022] TZCA 241.
Accessed at https://tanzlii.org/tz/judgment/court-appeal-tanzania/2022/241.
59 Ibid, p. 6 of the judgment.
60 Ibid, p. 32 of the judgment.
61 High Court of Tanzania at Sumbawanga. 2022.
62 Environmental Management Act 2004, section 75.

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authorities’ efforts to enforce laws for the conservation of natural resources.63

Through the prompting of counsel, the court ended up applying a relatively
old regulation prohibiting construction on the disputed pieces of land located
in a mangrove reserve area meant for environmental conservation, where
human residence is strictly prohibited. Once again, the judge, by way of sua
moto, noted:64

I will take judicial notice of the Government Notice No. 294 of 1941 which
declared the sea shore and the Islands lying off the then Dar es Salaam
District to be a mangroves [sic] reserved area [emphasis added].

The Anthony Mseke case was decided in 2012, long after the EMA and the Forest
Act came into force. These laws direct authorities (including courts) to take
into account, among other things, climate change impacts in decision-making
procedures. Despite the direction indicated by these recent laws, the court
ended up applying a colonial-era subsidiary law in its ruling to protect the
depletion of mangroves. Further, at the time of this ruling there existed a
number of authorities who showed a direct link between climate change and
the management and conservation of mangroves.65 Apparently neither coun-
sel nor the court made any effort to research these. Indeed, this inactivity by
counsel and the courts is common in many natural resource suits litigated
under environmental statutes involving LGAs and other regulatory agencies
in Tanzania where courts have failed to link environmental concerns with cli-
mate change mitigation as required by EMA.
Overall, the analysis provided here reveals that climate litigation world-
wide has developed progressively through different branches of common law.
Subsequently it has advanced through precedents enlarging the definition of
environmental protection and linking it to various impacts of climate change.
At the forefront of these initiatives were environmental law activists – NGOs,
CSOs and individuals, have turned into climate litigators. In Tanzania, these
stakeholders have assisted courts to expand and develop legal principles
linking environmental law and human rights even before the enactment of
any framework for environmental law.66 Thus, hopefully, the development
of climate change law and resultant litigation will progressively undergo a
similar trend.

63 High Court of Tanzania at Dar-es-Salaam, 2012.

64 Ibid, at pp. 11–12 of the judgment.
65 Elizabeth McLeod and Rodney V. Salm. 2006.
66 Hamudi I. Majamba. 2001. Also Chris M. Peter, 1997.

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14 Majamba

The difference between trends observed in Tanzania concerning the devel-

opment of the nexus between environmental protection and human rights
jurisprudence on the one hand, and environmental protection as it relates
to climate litigations on the other, is that the former was propelled by legal
training institutions, the Tanganyika Law Society (TLS) the Bar Association
of Mainland Tanzania, NGOs and bold individual judges. In contrast, it would
appear that climate litigation has not risen on the list of priorities for most
of these stakeholders. It was only towards the end of 2022 that TLS organized
climate change and related litigation sessions for its members.67 More recently,
in January 2023, as required by the law to provide remedial training, TLS orga-
nized a Continuing Legal Education seminar on Climate Change Law.68
Bar associations in the East African Community, specifically in Kenya and
Uganda, have been comparatively more vocal and have instituted environ-
mental law suits and engaged in typical climate litigation in their country’s
courts.69 TLS needs to conduct more sensitization courses for advocates, to be
at the forefront spearheading climate litigation in the country, thus developing
Tanzania’s contribution to global jurisprudence in this realm.
With respect to assisting NGOs and CSOs, the Lawyers Environmental
Action Team (LEAT), the Forum on Climate Change (FORUMCC), and the
Legal and Human Rights Center (LHRC) which had once been relatively vocal
in advocating for the environmental and human rights linkage, have seem-
ingly turned a blind eye to climate litigation.70 The Climate Action Network
Tanzania has also had little impact on climate litigation.71 The NGOs and CSOs
should be prepared for challenges ahead with the development of the Written
Laws (Miscellaneous Amendments) Act No. 3 of 2020, which places hurdles
up against instituting suits against the government concerning violation
of human rights – this law will have far reaching impacts on climate litiga-
tion. It re-introduces the requirement for proving locus standi rule in public
interest litigation, which had been overcome heretofore by courts of law.72

67 Legal Symposium organized by Tanzania Law Society and the United Kingdom Bar
Association: Climate change, environment and sustainability disputes in Tanzania.
November 2022. Accessed at https://www.barcouncil.org.uk/training-events/calendar
/tanzania-uk-legal-symposium.html.
68 Accessed at https://media.tanzlii.org/files/legislation/tz-act-gn-2022-601-publication
-document.pdf.
69 S.A.K. Mwesigwa and P.D. Mutesasira, 2021.
70 Lawyers’ Environmental Action Team. Accessed 16th March 2023 at https://www.leat
.or.tz/public-interest-and-litigation. Also, Forum on Climate Change. Accessed 16th March
2023 at https://www.forumcc.or.tz,/. and Legal and Human Rights Centre. Accessed
16th March 2023 at https://humanrights.or.tz/en, respectively.
71 Accessed 16th March 2023 at https://www.cantz.or.tz/.
72 Issa G. Shivji, 2020.

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Climate change and climate litigation in Tanzania 15

Interestingly, the 2020 amendment does not repeal the locus standi provision
in EMA.73 The constitutionality of the amendment, which is certainly a retro-
gressive step in climate litigation for the country, has also been questioned.74
It is therefore critical for stakeholders to seek the intervention of the court to
annul the amendment. This analysis reveals that the existence of a framework
for climate change laws has boosted climate litigation. As noted above, Kenya
and Uganda, which have made comparatively greater strides in climate litiga-
tion than Tanzania, have framework laws that have been used by counsel and
courts in directing change in developing jurisprudential precedents.75
In the climate change related cases of Tanzania discussed in this article, it is
clear that counsels’ submissions have not been well articulated nor adequately
researched. Consequently, they have not assisted courts in developing climate
change precedents. This is partly attributable to the lack of a framework for cli-
mate change law. Also, counsel has not effectively utilized the Environmental
Management Act in making submissions in court. For instance, EMA directs
government agencies to comply with multilateral environmental agreements
(MEAs) in general and the UNFCCC with its related Protocols and the Vienna
Convention for the Protection of the Ozone Layer of 1985, in particular.76 Also,
sections 140, 142, 145 and 230(2)(s) of the EMA direct the government to set air
quality standards, which have been in place since 2007.77
The critical role of framework climate change laws has been emphasised
in this analysis with respect to policy direction, which has a direct bearing on
developing climate litigation. As legal scholars have correctly noted:78

Climate legislation can help provide longer-term certainty in a policy

direction that cannot be easily reversed; and provide transparency, pre-
dictability, (sustainability) and legitimacy to regulate citizen’s activities.
It also encourages coordination and consistency of policies across gov-
ernment agencies, which is critical for a cross-sectoral issue like Climate
Change.

73 Section 4, 5 and 6 of Environmental Management Act, 2004. Op.cit.

74 Shivji, I. G. 2020. op. cit.
75 Climate Change Act, No. 11 of 2016 (Kenya). Accessed at http://kenyalaw.org:8181/exist
/rest//db/kenyalex/Kenya/Legislation/English/Acts%20and%20Regulations/C
/Climate%20Change%20Act%20-%20No.%2011%20of%202016/docs/ClimateChange
Act11of2016.pdf & the National Climate Change Act, 2021 (Uganda). Accessed a https://
climate-laws.org/geographies/uganda/laws/national-climate-change-act-2021.
76 Ibid. Part XV, sections 75 (e) and 132 (2), respectively.
77 United Republic of Tanzania, 2007.
78 C. Dlamini, et al. 2021, p. 2.

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16 Majamba

The government of Tanzania should enact a comprehensive piece of climate

change legislation, founded on a revised climate change policy, to signify its
further commitment under multilateral environmental agreements. As an
example, the promulgation of the Carbon Trade Regulations is a commend-
able step in the right direction. However, these regulations have been made
under EMA, and so they do not address climate mitigation and are not adapt-
able comprehensively in the manner envisaged by MEAs in general, and by the
UNFCCC in particular.
The approach used by Kenya and Uganda, in their comprehensive climate
change laws, should be emulated by Tanzania. The reciprocity by Tanzania will
also augur well with the spirit of the EAC, which calls for harmonisation of
legislation, including those acts related to climate change.79
This analysis of cases selected from Tanzania also reveals that unlike the
judges who were active in developing jurisprudence on the nexus between
environmental protection and human rights in the absence of legislative
enactments, judges today seem to be comparatively lax in supplementing their
judgments by conducting research to probe contemporary precedents and
developments in climate litigation conducted in other jurisdictions. The judges
have also made little effort to direct counsel, by way of sua moto, for example,
to address them on climate change law and related precedents where climate
change issues have been included in counsels’ submissions. The sua moto tac-
tic has been applied by courts and received general approval in Tanzania in
both criminal and civil cases in other suits.80

Conclusion

The evolution of climate litigation worldwide witnessed courts initially deal-

ing with principles developed in environmental law and human rights dis-
courses. Later, with the assistance of counsel predominately led by NGOs and
CSOs, courts progressively developed principles of climate change law and

79 East Africa Community. 2022.

80 Fred John v Republic (Criminal Appeal 17 of 2018) [2020] TZCA 364 (28 July 2020).
Accessed 17th March 2023 at https://media.tanzlii.org/files/judgments/tzca/2020/364
/2020-tzca-364.pdf pp. 6–7. Also see Nelson Michael Mwasalanga (As Legal Representa-
tive of Michael Mwasalanga) (Land Appeal 29 of 2020) [2020] TZHC 4134 12 November
2020. Accessed 17th March 2023 at https://media.tanzlii.org/files/judgments/tzhc/2020
/4134/2020-tzhc-4134_1.pdf pp. 6–7 of judgment, respectively.

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Climate change and climate litigation in Tanzania 17

related precedents.81 The ripple effect of this development has witnessed gov-
ernments’ complying with commitments and obligations of multilateral envi-
ronmental agreements and courts’ directives.
Indeed, this evolution rhymes well with the common Kiswahili saying, pro-
viding hope in times of despair: Hata mbuyu ulianza kama mchicha, literally
translating to: Even the baobab tree commenced its growth at an embryonic
stage, just like the spinach plant.82 The trends in climate litigation in Tanzania
emerge as the budding of the baobab tree. If nurtured, climate litigation will
certainly assist judges in the country to develop fully fledged precedents that
contribute significantly to the development of precedents globally. Judges
worldwide have appreciated climate litigation after being exposed to the
link between conservation of biodiversity, climate mitigation, and climate
adaptation.83 One of the judges summed-up his colleagues’ views after a train-
ing course of climate change law when he observed that:

Climate change is a persistent, pervasive and pernicious problem. Each

branch of government, including the judiciary, has a role to play in tack-
ling climate change.84 [emphasis added]

Other critical players in developing climate litigation in Tanzania are educa-

tional and training institutions, by empowering society on legal issues relating
to climate change. For example, the Centre for Climate Change Studies (CCCS)
of the University of Dar-es-Salaam (UDSM) offers short courses and outreach
programmes on climate change issues.85 Courses such as climate change pol-
icy and law are available at the CCCS in collaboration with the University of
Dar-es-Salaam School of Law (UDSoL). UDSoL offers an environmental law
course to undergraduate students, and the Law faculty supervises postgradu-
ate students undergoing various research projects that have a bearing on law
of environmental conservation and climate change.86
The Institute of Resource Assessment (IRA) also at UDSM manages the
African Climate Change Fellowship Program (ACCFP); these experts could
also provide a platform for sensitising lawyers and judges in advancing climate

81 Environmental Compliance Institute (Kenya) 2014. ECI has built and strengthened legal
capacity on climate change in Kenya in February 2014.
82 Ahmed Kipacha, et al. 2018: p. 59.
83 C. Rickard. 2022.
84 Ibid.
85 Center for Climate Change Studies (CCCS) University of Dar es Salaam. 2023.
86 University of Dar es Salaam Prospectus for Undergraduate Studies. 2021. p. 326 (LW 406)
Also Prospectus for Postgraduate Studies 2022, pp. 243–262.

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18 Majamba

change policy, law and related litigation in the country.87 Similarly, the Climate
Change and Biodiversity Program hosted by the IRA at UDSM could provide
tailor-made short courses on climate change policy, law and litigation for advo-
cates, NGOs, CSOs and the judiciary.88
With further training and capacity building in this direction, future trends
of climate litigation in Tanzania will most probably witness more highly sen-
sitised counsel, judges, government officials and civil society. All these sec-
tors will be called upon later, to address novel climate law suits involving, for
example, the mining sector and conflicts between pastoralists and farmers.
Such developments will require more rigorous research on the part of coun-
sel and judges to enable them to probe the ways that climate litigation may
address the nexus between climate change adaption, mitigation, and the
much-anticipated conflicts over the use of natural resources.89

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