The efficacy of Environmental Law in Zimbabwe

"the destine of humans cannot be separated from the destiny of earth"

The discussion below is premised on the environmental liability, that is, any liability contingent or otherwise (including any liability for damages, costs of environmental remediation, fines or penalties). In this regards a critical evaluation of the adequacy of penalties for violation of environmental law in Zimbabwe will be addressed. The criminal sanctions and civil liabilities of any contravention of environmental legislation which protects the environment from environmental damages. The discussion is an illustration of the difficulties encountered in regulating environmental protection in Zimbabwe.

1. 1   Environmental degradation 

Despite sanctions imposed by the Environmental Management Act (EMA) and other national and international legislation in the country, environmental damage prevails and remains very difficult to combat in Zimbabwe. Environmental degradation is the deterioration of the natural habitats, protected species and any damage that has significant adverse effects on reaching or maintaining the favorable conservation status of designated habitats. In Zimbabwe, activities which mainly cause harm to the environment and are very difficult to combat because of their economic nature.

1.1  Mining Activities

Mining as an activity inherently carries great potential to cause extensive environmental harm. Apparently besides its economic value, mining causes gross environmental degradation in Zimbabwe which includes water pollution. This was highlighted by Prof.N.C Saxena of Center of Mining Environment in India that, mining either by open cast or by underground methods damages the water regime and thus causes a reduction in the overall availability of waste in and around mining areas. Thus, the mining sector in Zimbabwe has led to drastic environmental degradation through conducting in activities which are regulated by EMA.

1.2  Negligence of administration bodies 

Furthermore, there are a variety of different administrative functions which are required to be carried out by the administrative bodies in order for environmental legislation to be effective.The most comprehensive powers given to administrative bodies are the powers of management of natural resources such as water, forests and national parks. Although Local authorities are heavily regulated by EMA, an extensive amount of environmental deterioration in Zimbabwe has occurred due to gross negligence of this administrative board. . Environmental negligence of local authorities has been witnessed in Zimbabwe in a number of cases. The demand for housing in Harare has seen the city’s local authority parceling out land in areas that had been preserved as wetlands. Monavale Vlei and Mayfield Estate are some of the wetlands that have been turned into residential areas in Harare city council. Consequently, the environmental deterioration persists in Zimbabwe because of the negligence of administrative bodies to exercise their powers of sufficiently managing the environment as provided for by the EMA.

2        Penalties for violation of environmental laws

In Zimbabwe, the legislative measures taken for violation of environmental laws includes criminal sanctions and civil liabilities. These measures are taken as deterrence measures to prevent anthropogenic degradation of the environment. For instance in a quest to prevent climate change through emissions of gases, section 68 of the EMA makes emissions by motor vehicles and other conveyances which contravenes the prescribed standard emissions for the class of the transport concerned an offence. The enforcement of environmental laws is done through fines, civil liability and compensation by third parties.

Provisions like the aforementioned have criminal sanctions because failure to comply with results to an offense. A primary sanction is one which is applied in a case of contravention of provisions which outlaws certain conduct directly, such provisions can also be seen in the Forest Act section 30 and 31, where cutting down of trees without a license is directly made an offense in Zimbabwe because it results in deforestation which leads to global warming and changing of weather patterns which have adverse impact to the country especially considering the fact that our economy is agro based. However, although we have this direct and clear criminal sanction the environment deterioration prevails because of a number of factors which comes with criminal sanctioning of environmental laws.

2.2    Criminal Sanction

Criminal sanction of environmental laws violations seem to be problematic because of the burden of time and cost. In the case of Feedmill Development (Pty) Ltd v Attorney General KwaZulu-Natal, the case was prolonged, it took four years because of the need to use expert evidence in certain types of pollution trials, costs are higher than common trials dealing with the more frequently encountered common law crimes. Sentences provided for are often small, but the problem would not be necessarily resolved by stiffening penalties. Criminal sectioning of environmental laws also faces a problem of the more stringent standard of proof to be satisfied in criminal cases. The proof is beyond reasonable doubt. There are three principal evidential problem facing prosecution, that is, the identification of the offender, the requirement to obtain sufficient evidence to provide proof beyond reasonable doubt, and the difficulty of establishing mens rea in cases where the offence is not a strict liability. 

2.3   Inadequate policy

More so, inadequate policy is a contingent weakness of criminal sanction of environmental laws in countries like Zimbabwe which has strained government resources. The administration of a number of Zimbabwean environmental statutes has been assigned to provinces that are spending most of their budgets on matters seen as more pressing, namely education, health and welfare. This undermines the efficacy of alternative methods of state control as well, so t is not a problem unique to criminal law.

3.1   Deterrence in Zimbabwe

Deterrence model applied in Zimbabwe is mainly premised on the polluter pays principle. As provided for in Principle 16 of the Rio Declaration, the costs of pollution should be borne by generator of pollution rather than society at large. National authorities should endeavor to promote the internationalization of environmental costs and use the economic instruments, taking into account the approach that the polluter should in principle bear costs of pollution, with due regard to public interests and without distorting international trade investment. In line with the polluter pays approach, the Zimbabwe relies on financial incentives and disincentives to deter non-compliance with regulation.

3.2   Fines

Fines play a significant role in the financial incentives and disincentives approach to deter non-compliance with regulation. Despite the unambiguity of the provisions sanctioned with fines in the Environmental Management Act, there are still problems in the application of this regime in Zimbabwe. Apparently, despite the imposition of fines pollution still prevails in the country. The Gweru Municipality was fined several times but the discharge of raw sewage into Gweru River triumphs up until today. There are similar difficulties with the fining regime in the mining sector. Large mining operations have seemingly resorted to absorbing fines as operational costs rather than installing anti-pollution equipment as this s cheaper. Instead of fines being a deterring measure they have seen it as a sort of a fee as the fine is small than the benefits they gain or anticipate. The submission is that, it is more economical to pay EMA fines than to resort to anti-pollution measures. Thus the perpetrators are not being deterred by the existing fine, therefore the penalty is inadequate.

To further buttress the aforementioned contention, the fining regime is limited in that, it makes no provision for continued violation. The Act does not provide for increase of the fine for second violations of the Act by the same perpetrator which should be an aggravating factor. For instance, Harare City Council was convicted and fined two times in two years over charges of allocating wetlands for commercial and residential development purposes such as Long Cheng Plaza Mall, dumping raw waste into water resources and failure to collect rubbish from community dumping sites.

3.3   Civil Liability

In addition, the Environmental Management Act , attempts to deter environmental harm through empowering the regulator to make polluters pay for any cost incurred for cleaning up the environment . For instance Section 57 (2)(a) of the EMA provides that anyone polluting water shall pay cost of the removal any poison, toxic, noxious or obstructing matter, radioactive waste or other pollutants, including the cost of restoration of the damaged environment, which may be incurred by a government agency. The problem with this approach is that it seeks cooperation of the courts. This is problematic because there is often lack of knowledge by the court officials because there is little expertise in prosecuting these offences, which often require proof of difficult scientific facts. Magistrates can sometimes be intimidated by the intricacies of the scientific evidence into requiring proof beyond any doubt rather than reasonable doubt. This results in courts trivializing serious offenses as was frowned upon by Ndou J in S v Sibanda.

3.4    Third parties compensation

The Environmental Management Act also gives injured third parties the right to access courts (locus standi) for redress or compensation against parties who cause them harm. This approach seeks to secure reparations for harm caused. However just like the aforementioned techniques, this approach has also proven to suffer some deficiencies. This approach is conditioned on education, knowledge, expertise and resources. There is often lack of public awareness in the environmental law issues. Currently, the lack of development of environmental ethos would mean that most of the population would be relatively unconcerned with less serious contravention of environmental legislation. People are more concerned about the rate of murder rape, robbery and similar common-law offenses will understandably be less attuned to the seriousness of environmental offenses.

Conclusion

Putting up environmental issues on the same platform with civil and criminal cases has led to comparisons resulting in perpetrators being fined lightly. Therefore, there must be a separate environmental court for adequate enforcement of environmental issues in Zimbabwe. There should be an increase of fines for second perpetrators for efficient deterrence of environmental law violations. The separate Environmental Court should be a delegate of the High Court just like the Labour Court and must have the same efficacy to litigate environmental law issues.