Public Interest Environmental Litigation in Ethiopia: Factors for its Dormant and Stunted Features

Author:Yenehun Birlie
Position:Yenehun Birlie, LL.B, LL.M, Lecturer in law, Addis Ababa University School of Law; and Attorney and Consultant at law; Email: yenek2009@gmail.com yenehun.birlie@aau.edu.et
Pages:304-341
SUMMARY

Public interest environmental litigation (PIEL) has been introduced into the Ethiopian legal system since 2002 with the prime purpose of facilitating and complementing the environmental protection efforts of the country. However, little progress has been recorded in utilizing this innovative litigation tool. The purpose of this article is to examine the legal and policy frameworks for PIEL and... (see full summary)

 
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Public Interest Environmental Litigation
in Ethiopia:
Factors for its Dormant and Stunted Features
Yenehun Birlie
Abstract
Public interest environmental litigation (PIEL) has been introduced into the
Ethiopian legal system since 2002 with the prime purpose of facilitating and
complementing the environmental protection efforts of the country. However,
little progress has been recorded in utilizing this innovative litigation tool. The
purpose of this article is to examine the legal and policy frameworks for PIEL
and investigate some of the main factors impeding its effective use for the
promotion and protection of the environment rights in Ethiopia. Laws related to
PIEL are examined and interviews and discussions with the relevant
stakeholders are conducted with regard to environmental management in
Ethiopia. I argue that even though the legal and policy framework for PIEL,
with all its limitations, is in place, gaps in judicial activism, legal culture,
political will, public perception towards law, judicial process and justice, the
type of legal system, the perception and behavior of the government towards
civil society, and inadequate environmental information have adversely
affected the development of PIEL.
Key terms
Public interest litigation · Environment · Standing · Justice · Ethiopia
DOI http://dx.doi.org/10.4314/mlr.v11i2.3
Received: 28 August 2017 Accepted: 29 December 2017
This article is licensed under a Creative Commons Attribution-
NonCommercial-NoDerivs (CC BY-NC-ND)
Yenehun Birlie, LL.B, LL.M, Lecturer in law, Addis Ababa University School of Law;
and Attorney and Consultant at law;
Email: yenek2009@gmail.com yenehun.birlie@aau.edu.et
List of acronyms:
APAP Action Professionals’ Association for the People
CAC Command and Control
EPA Environmental Protection Authority
FDRE Federal Democratic Republic of Ethiopia
PCP Pollution Control Proclamation
CSP Charities and Societies Proclamation
PIL Public interest Litigation
Public Interest Litigation in Ethiopia: Factors for its Dormant and Stunted Features 305
Introduction
Public interest litigation (PIL), is gaining increasing attention and appeal across
much of the world in both constitutional democracies and transitioning societies.
It is particularly heralded for it improves access to justice for marginal and
vulnerable communities, raises awareness and debate about a particular issue
of general public concern. It is also submitted that PIL acts as a mechanism of
empowerment, voice, and accountability.1
PIL is a very important tool for the promotion and protection of
environmental rights. It is so because it is has been proved very difficult to fully
address environmental concerns using the traditional command and control
(CAC hereinafter) approach2 and the private enforcements. It is very important
1 J. Oloka-Onyango (2015), “Human Rights and Public Interest Litigation in East Africa: A
Bird’s Eye View”, The George Washington In ternational Law Review, V. 47, No. 4, p. 1.
2 Ever since the birth of modern environmental regulation in the 1970s, crafting and
implementing effective, efficient and legitimate regulation and governance has always
been a daunting challenge for governments and society. At the beginning, governments
managed environmental problems through enforcement of strict rules and standards set out
in legislation and treaties. This system is conventionally known as Command and Control
(CAC). This approach typically specifies standards, and sometimes technologies, with
which regulatees must comply (the “command”) or be, penalized (the “control”). The key
characteristic of command and control (CAC) regulation is that the regulator specifies what
individual firms can and cannot do (enforced by the threat of penalties for non-
compliance). This involves centralized legislatures setting blanket environmental targets,
such as emission standards, exposure levels or technology standards (the command).
Delegated agents, such as environmental protection agencies, are then empowered to
police compliance and impose penalties where standards were breached (the control).CAC
has been criticized for being inefficient, inflexible, subject to compromises in the political
process. Nevertheless, in the 1980s, governments began to shift their attention away from
this Westphalian vision of state power through hierarchy. Instead, environmental problems
were, in most cases, to be tackled through market-based approaches, voluntarism and other
‘light-handed’ policy initiatives such as partnerships and cooperation. Yet, by the end of
the 1990s, continuing ecological degradation and the increasing complexity of social and
environmental problems saw a new shift towards environmental governance. Nowadays
governments are working towards, a more comprehensive approach to upgrading the
quality of existing regulations, a search for the best mixes of policy tools, linking
command-and-control instruments with economic instruments and voluntary approaches.
The new environmental governance (NEG) emphasized collaboration, integration,
participation, deliberative styles of decision-making, adaptation and learning. Public
interest litigation is part of the “new environmental governance” which aims at making the
public part of the fight towards environmental degradation. See Neil Gunningham (2002),
“Beyond Compliance: Next Generation Environmental Regulation”, Australian Institute of
Criminology available at:
https://pdfs.semanticscholar.org/ 55d2/db0bf9c9002feca23073d1d8dff27c47556c.pdf
(visited on December 15, 2017), see also Gunningham, N and Holley, C (2010) “Bringing
306 MIZAN LAW REVIEW, Vol. 11, No.2 December 2017
for developing countries like Ethiopia as there is a huge environmental law
enforcement deficit and the conventional litigation is expensive, burdensome
and unpredictable due to the nature of environmental problems and of relief
sought. PIEL also makes sense in developing countries where environmental
concerns of involuntary displacement, re-settlement, provisions of basic needs
of water and sanitation, indoor air pollution are interlinked with the rights of the
poor and the underprivileged sections of society.
Opponents criticize PIL on two grounds: (1) it is improper for judges to
mandate social reform in a democracy, and (2) courts, because of institutional
limitations and political vulnerability, are destined to see their reform efforts
frustrated in the middle or long term.3 The practice of countries with a mature
PIL however shows that if properly regulated, it can entail immense benefits. At
least in environmental matters, there is “convincing empirical evidence”4 that it
can be effective. Hence, PIEL can and should complement the government’s
effort to protect the environment in countries like Ethiopia. This article
examines the legislative and policy basis for PIEL in Ethiopia. It then goes on to
critically analyze the main factors that have been impeding the development of
PIEL.
1. Public Interest Litigation: Meaning, Definition and Concept
Public interest litigation5 is a “legal action initiated in a court of law for the
enforcement of public interest or general interest in which the public or a class
of the community have pecuniary interest or some interest by which their legal
rights or liabilities are affected”.6 It is a form of legal proceeding in which
the ‘R’ Word Back: Regulation, Environment Protection and NRM”. Canberra: ASSA.;
The OECD Observer No. 206 (1997) available at:
http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.613.789&rep=rep1&type=pdf
visited on December 15, 2017), pp.14-15.
3 John Denvir (1976), “Towards a Political Theory of Public Interest Litigation”, 54 N. C. L.
Rev., 1133 .Available at:
http://scholarship .law. unc.edu/nc lr/vol54/iss6/1. p. 1133. (Accessed on July 15, 2017).
4 Michael G. Faure and A.V. Raja (2010), “Effectiveness of Environmental Public Interest
Litigation in India: Determining the Key Variables”, Fordham Environmental Law Review,
V. 21, No. 2. p. 239.
5 Public interest litigation is known also by a variety of other terms like: public law
litigation, social action litigation, causes lawyering, strategic impact litigation. See Access
to Justice (2002), “Litigating for Justice A primer on Public Interest Litigation (PIL),
edited by Joseph Otteh, pp. 1-6.
6 Indian Supreme Court Judgment Janata Dal v. H.S. Chowdhary with Writ Petition (Crl.)
No 114 of 1991 Dr. P. Nalla Thampy Thera, Petitioner Versus Union of India and Others,
Respondents Criminal Appeal Nos. 304-311 of 1991 and Writ Petition (Crl) No. 114 of
1991.

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