Unlike many other human rights treaties, the African Charter contains several provisions linked to the protection of the environment. These include article 21 (the right of peoples to dispose of their natural resources), article 24 (right to a general satisfactory environment), as well as article 14 (the right to property), article 15 (the right to work under equitable and satisfactory conditions), and article 16 (the right to physical and mental health). These articles provide opportunities for individuals and communities to enforce rights related to environmental damage. This potential for what Gathii has referred to as ‘judicial environmentalism’ has been witnessed in a number cases (African Network for Animal Welfare (ANAW) v Tanzania (Serengeti case); Socio-Economic Rights and Accountability Project (SERAP) v Nigeria; Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya (Endorois case); Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights v Nigeria; African Commission on Human and Peoples’ Rights v Kenya (Ogiek case)).
In particular, the cases of SERAP v Nigeria and SERAC v Nigeria provide insight into how the African Commission or African Court might deal with a case brought against Mauritius. In SERAP v Nigeria, before the ECOWAS Court, the applicants alleged widespread corruption had led to State failure to provide adequate educational standards and, in particular, a violation of office 365 database articles 1, 2, 17, 21 and 22 of the African Charter (para. 8). The ECOWAS Court established that even if a particular branch of the State is not directly responsible, it could be responsible ‘vicariously’ (para. 15) and, therefore, contribute to a violation (para. 17). Therefore, while SERAP v Nigeria is not an environmental case, it is still significant in the context of environmental matters as it establishes State responsibility to take action to ensure the rights of individuals and communities are fulfilled under the African Charter, even when the State is not directly at fault.
The African Commission case SERAC v Nigeria, related to Ogoniland and the consequences of the exploitation of oil reserves in the region, as well as the State’s role in the suppression of resistance to such exploitation. In its decision, the African Commission not only found that Nigeria had violated articles 2, 4, 14, 16, 18(1), 21 and 24 of the African Charter, but also that article 16 and article 24 ‘recognise the importance of a clean and safe environment that is closely linked to economic and social rights in so far as the environment affects the quality of life and safety of the individual’ (para. 51). It also found that States are obliged ‘to take reasonable and other measures to prevent pollution and ecological degradation’ (para. 52). The African Commission further stated that article 21 provides for a positive ‘duty [on the State] to protect their citizens, not only through appropriate legislation and effective enforcement, but also by protecting them from damaging acts that may be perpetrated by private parties’ (para. 57). More generally, the African Commission found that ‘collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa’ (para. 68).