Environmental Rights Jurisprudence in Tanzania: Review of Judicial Precedents

Full text

1
Environmental Rights Jurisprudence in Tanzania: A Review of Judicial Precedents
H. I. Majamba*
Introduction
This paper analyses the development of case law (judicial precedents) on environmental
law with a specific focus on environmental rights in Tanzania.1 It seeks to ascertain the
philosophy (jurisprudence) behind the rulings of authoritative courts in Tanzania. The
analysis has been confined to case law from authoritative courts on Mainland Tanzania,
the High Court and Court of Appeal, whose decisions become binding on lower courts
in the judicial hierarchy in accordance with the common law doctrine of precedent.2
The paper traces the development of environmental rights jurisprudence in the
Tanzanian judiciary to developments of principles of environmental protection that have
been established by the international community through international and regional
human rights instruments and consequently entrenched into the provisions of
Constitutions and environmental protection legislation of States. The paper's main
thesis is that the philosophy behind precedents on environmental legislation in Tanzania
has to some extent been influenced by the link between human rights and environmental
rights that are constantly evolving at the international level. The paper also argues that
the judiciary has not taken up opportunities that arise to develop the jurisprudence of
* LL. B (Hons) (Dar); LL.M (Queen's); Ph.D. (Northeastern), Lecturer in Law, University of Dar-es-
Salaam (A different version of this paper was presented by the author at a Judicial Symposium on
Environmental Law and Policy at Arusha, Tanzania in June 2003).
1 The term environmental law in this context refers to the body of laws that provide for the management,
conservation and protection of living organisms and the atmosphere that supports their continued existence.
2 According to the Constitution of the United Republic of Tanzania, environment is not a Union matter.
Zanzibar has a comprehensive environmental law - The Environment and Sustainable Development Act
No. 2 of 1996

2
environmental justice through case law. The discussion on the treatment of
environmental law cases by authoritative courts in Tanzania is preceded by some
reflections on developments at the international level in this realm.
Environmental Litigation at the International Legal Arena
Litigation on environmental issues at the international and national levels has increased
mainly due to international and national legal instruments and legislation recognizing
environmental rights. Judicial activism in interpreting provisions of the legal
instruments and the legislative provisions providing for environmental rights, even in
remote cases, has also greatly contributed to the development of environmental justice.
The role of counsel in promoting environmental law jurisprudence has also gained
tremendous pace.
The above developments in the field of environmental litigation have given rise to
different approaches in endeavors to seek environmental justice. In the process of this
development, environmental rights have been defined, re-defined and linked with
various discourses. Admittedly, courts have had to grapple with all these in diverging
circumstances and from different legal perspectives. A notable feature in the
development of environmental justice at the international level is the tripartite link
between constitutional guarantees, the human rights discourse and environmental rights
jurisprudence.

3
What has threatened the link, on the other hand, has mainly been the issue of standing
to sue (locus standi) with regard to people who seek the assistance of the court to
enforce environmental rights.
An analysis of the treatment of the tripartite linkage and the main threat to the link
would be appropriate at this juncture.
The Constitutional Link: Human Rights and Environmental Rights
The drive towards environmental protection by the international community has closely
been linked to the constitutional and human rights discourses. This link is premised on
the fact that human health and existence, (already recognized as a right to life by the
international Bill of Rights), to a large extent depends on a safe and healthy
environment. As a result of the symbiotic linkage to existence of life, the right to a
clean, healthy and safe environment has consequently been considered as a prerequisite
to ensuring the right to life. Mainly due to this linkage, there has been a drive to
incorporate the right to a clean and healthy environment in human rights instruments at
the global, regional and national levels.
Due to the linkage between environmental rights and constitutional and human rights,
the beginning of the 1990's witnessed the development of environmental rights with
states entrenching environmental rights provisions in their constitutions. In Africa, the
Constitutions of Mozambique, Uganda, Malawi, South Africa and Lesotho have
provisions that specifically provide for peoples' rights to a clean, safe and healthy

4
environment.3 Some countries such as Malawi and Mauritius have entrenched
provisions guaranteeing citizens environmental protection in their national
environmental laws.
The inclusion of environmental rights in Constitutions and Human Rights instruments
has directed the judiciary to the importance of taking steps to address environmental
destruction. Where the government or private enterprises fail to abide by the
Constitutional mandate, they become susceptible to judicial scrutiny.
A number of court cases from several countries around the world reflect a new
paradigm in the approach to environmental litigation and the application of emerging
environmental rights and principles enshrined in a number of international
environmental law and human rights instruments.4
Even in cases where human rights instruments have not specifically provided for the
right to a clean and decent environment, courts have invoked the right. For example,
although the European Convention on Human Rights does not specifically make
reference to the right to an environment that is clean and healthy, case law from the
3 See UN Doc. E/CN.4/Sub2/1994/9 at p.17 for the list of states that have entrenched environmental rights
provisions in their Constitutions.
4 See the Malaysian case of Kajing Tubek vs. Ekran Bhd et al [1996] 2 Malayan Law Journal where
numerous plaintiffs successfully challenged the government's plan to develop a hydroelectric project, which
would have adversely affected their environmental rights.

5
European Court of Human Rights has recognized this right through a literal
interpretation of the right to life.5
Locus Standi
The phrase "locus standi" generally refers to a traditional common law prerequisite to
civil litigation. It provides that in order for a plaintiff to institute an action to prevent an
abuse of a public right, or to enforce the realization of a public duty, the plaintiff must
have a special interest to protect.6 Where harm is caused as a result of environmental
degradation, it is usually a multitude of people who are affected by such destruction.
Where a few of them seek to invoke the jurisdiction of the court to determine their
environmental rights, the issue of locus standi usually becomes a major stumbling block
to the realization of their rights.
Also, environmental litigation is usually costly as it may involve colossal amounts of
money due to the need, in most cases, to conduct scientific research to prove or
challenge environmental damage. As a result, most court cases would be instituted by
civil society organizations. These would also have to prove that they have a special
5 See Powell and Rayner; Judgement of 21/2/1990 Eur. Ct. H.R. Ser A Vol. 172; The Fredin Case
Judgement 18/2/1991 Eur.Ct. H.R.Ser.A Vol. 192 and The Skanby Case Judgement 28/06/1990
Eur.Ct.H.R.Ser. A Vol 180-B
6 See Gouriet et al vs. A.G & Union of Post Office Engineering (1971) A.C. 435 (at 437).

6
interest to go around the locus standi rule. Therefore, a strict application of the locus
standi rule would be detrimental to the enforcement of most environmental rights.
Courts have, however, broadened the rules on locus standi where a party seeks to
invoke its assistance in enforcing fundamental rights generally7 and specifically,
realizing the tripartite connection, they have been more flexible in the application of the
rule when enforcing environmental rights.8 It is not out of the ordinary, therefore, that
in the Bangladesh case of Mohiuddin vs. Bangaladesh9, the court held that an
organization dealing with environmental issues had locus standi where it instituted a
suit on behalf of numerous people on a matter of public concern.
It is therefore evident that the jurisprudence of courts towards environmental litigation
in other jurisdictions strongly suggests that judicial activism has played a significant
role in promoting environmental justice in the face of stringent procedural rules and
doctrines. In some cases, courts have been innovative and recognized the tripartite
connection between human rights, constitutional guarantees and environmental rights in
the course of deliberating pertinent issues on environmental justice.
Legal Protection of the Environment in Tanzania: An Overview
7 See for example R. vs. National Federation of Self Employees and Small Business Ltd [1982] A.C. 617
8 The Australian case of Building Owners and Managers Association Ltd. vs. Sydney City Council, 55
L.R.G. A 447 and the Dutch case of De Nieuwe's reported in Gervit Betlem, Standing for Ecosystems -
Going Dutch [1995] C.L.J 153 at 158
9 Civil Appeal No. 24/1995 IBLC (AD) (1996) 189; 219, 1996

7
The use of legal instruments to protect the diverse environmental resources of Tanzania
at the national level commenced during the colonial era with the enactment of a corpus
of colonial laws and policies. The independence government inherited most of these
laws and most are still in use to date. Colonial powers also entered into a number of
international agreements that have a bearing on the environment. The independence
government also adopted these.
Tanzania is now a party to several global treaties that have a bearing to the environment.
These include the United Nations Convention on Biological Diversity of 1992, Vienna
Convention for the Protection of the Ozone Layer of 1985 and the Montreal Protocol on
Substances that Deplete the Ozone Layer of 1987. Others include the United Nations
Convention on the Law of the Sea of 1982; the Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and their Disposal of 1989 and the
Convention on International Trade in Endangered Species of Wild Fauna and Flora of
1973.
In addition, Tanzania is also a party to regional agreements relating to the environment.
These include the Bamako Convention on the Ban on the Import into Africa and the
Control of Transboundary Movement and Management of Hazardous Wastes Within
Africa 1991, the Africa Charter on Human and Peoples Rights, 1981 also know as the
Banjul Charter. Its is also party to the Treaty Establishing the African Economic
Community, 1991 also known as the Treaty of Abuja and the Lome 1V Convention

8
between African, Caribbean and Pacific Countries (ACP) on the one hand, and the
European Economic Community (EEC), on the other of 1989
The evolution of environmental law at the international plane has played a significant
role in Tanzania's effort to develop and introduce environmental protection legislation
and policies.10 Eleven yeas after the Stockholm Conference on Environment of 1972,
Tanzania's efforts to protect its environment became more pronounced with the
enactment of National Environment Management Act 1983.11 This Act established a
National Environment Management Council (NEMC) and entrusted it with the overall
mandate of overseeing compliance with rules and regulation governing environmental
management and protection.
The NEMC Act is currently the only legislation in Mainland Tanzania, which provides
for the management of the environment at a more holistic level.12 The NEMC is an
advisory body to the government on all matters pertaining to environment, but it relies
on ministries and local government to achieve its mission. It has no direct enforcement
powers, for example, to inspect and prosecute persons or corporations who violate the
provisions of the Act.
10 UNEP, Industries and Enforcement of Environmental Law in Africa: - Industry Experts Review
Environmental Practice, 1998 p. 4
11 Act No. 19 of 1983
12 The government is in the process of enacting a comprehensive environmental law. The draft
Comprehensive Environmental Law Bill is in the initial stages of approval in Parliament.

9
Together with the NEMC Act, Tanzania's environmental legislation is also found in
segmented and sectoral statues on the regulation of the access to resources, for
example, land, minerals, water, forest, fisheries and wildlife. Other environmental
related legislation covers the regulation of waste disposed by industrial and
manufacturing plants, agriculture and fishing.
To ensure compliance, most environmental management legislation in Tanzania provide
for penalties in the form of imposition of fines and, or imprisonment. The sanctions
provided for relate to compensation, administrative penalties, and revocation of licenses
and, permits or other rights that are normally imposed by administrative agencies for
non-compliance with the condition of use of environmental resource as required by law
or by administrative agencies.
Environmental Litigation in Tanzania
In most trials concerning environmental rights, a conflict of interest arises between the
environmental rights of individuals and commercial interests. In theory, the conflict of
interest has already been balanced by the legislature, which has put in place legislative
provisions in favor of protection of environmental rights. The diverse and varying roles
of administrative authorities have also theoretically been considered. These have been
vested with the mandate of regulating activities that may cause harm to the
environment. The major role of courts in environmental litigation is to ensure that the

10
interests of all these stakeholders, are as far as they reflect the will of the legislature,
are maintained.
The corpus of environmental legislation in Tanzania is relatively broad, segmented and
sectoral covering diverge aspects of environmental management and protection. Tracing
the relevant and applicable law to a fact situation therefore becomes relatively difficult.
The difficulty in locating the various pieces of environmental laws is further
compounded by the fact that few people (including lawyers) are aware of the existence
of the sectoral and segmented legislative provisions. The lack of a framework
environmental law for quiet sometime, which would have provided some guidance and
direction on various issues, has to some extent complicated the matter.
Unlike other jurisdictions, where parties to litigation can make recourse to Constitutions
for protecting their rights to clean and healthy environment in Tanzania, this is not the
case. The Constitution does not make direct reference to the right to a clean and healthy
environment. Prima facie, this scenario makes environmental litigation more complex.
The analysis on the development of jurisprudence on environmental litigation has been
confined to a few selected cases from the High Court and one from the Court of
Appeal.

11
As is the case in other jurisdictions, environmental litigation in Tanzania is also
conducted on the basis of common law principles, such negligence, nuisance, strict
liability and riparian water rights.13
Judicial Approaches to Protection of Environmental Rights
There are relatively few cases that deal with environmental rights at the High Court level.
This may be attributed to a number of factors. One of the factors is that environmental
law in Tanzania has not been fully developed in legal training institutions. As a result
most legal practitioners and members of the bench are therefore not fully conversant with
the subject. The other factor relates to a general lack of awareness among the public on
environmental law. Most people in Tanzania have not cultivated a culture of pursuing
their rights to a clean and healthy environment in courts of law.
Another explanatory factor for having few cases at the High Court level is because most
environmental related cases are instituted and settled at the level of District and Regional
Magistrates courts. At this level, however, the cases are not relevant for purposes of this
analysis, bearing in mind the limitations to which this paper has been confined.
The discussion on the approach of the judiciary in this analysis has also been confined
to a relatively unrestricted definition of the phrase "environment" that relate to citizens
rights to healthy, clean and uncontaminated surroundings. The analysis does not cover
13 Makaramba R.V and Macha, V.N. Development and Harmonisation of EIA Regulations and
Guidelines Report to the United Republic of Tanzania on Environmental Law and Institutions in
Africa 1997, p. 40

12
cases that have a bearing to the protection of sectoral natural resources such as wildlife,
fisheries and forests since most cases in this category are normally criminal in nature.14
The few civil suits that relate to sectoral natural resources legislation that exist have a
bias on enforcement of administrative tasks such as issuance of licenses and permits.15
The case studies that have been discussed in this part have been purposefully selected in
order to compare the environmental litigation jurisprudence of the Tanzanian judiciary
with the approaches of the bench in other jurisdictions. It follows, therefore, that the
focus of this part of the paper will analyze court cases that have dealt with the issues of
locus standi and the linkage between environmental rights, human rights and
constitutional law.
Perspectives on Locus Standi
Courts in Tanzania have generally addressed the issue of standing to sue in public and
private interest litigation and also with regard to environmental litigation. However, the
guarantee of standing to sue by individuals in endeavors to protect the interests of a
multitude of persons, for example in environmental litigation, is not expressly provided
for by the Constitution. The Bill of Rights provisions on the other hand are also, prima
facie, not very helpful, as there is no explicit provision for a litigant to invoke the
jurisdiction of the court in an attempt to safeguard public interest, for example
14 See for example R.vs Sefu Abdulla [1967] HCD 16; R. vs Magina [1967] HCD 69; R. vs Said [1970]
HCD 197; and Halimoja Kavira vs R [1968] HCD 418
15 See for example, Tamale Kigezi vs District Administrator [1967] EA 1; Adecon Fisheries Ltd vs Director
of Fisheries et al [1996] TLR 352 and GBL Associates Ltd vs Director of Wildlife et al [1989] TLR 195

13
environmental protection.
Despite the apparent lacuna, the High Court has made some good progress in ensuring
that environmental rights are realized. It has held that citizens can exercise their rights
to sue in the public interest even where, they as individuals, do not have an express
interest in the suit.16 This innovation was pronounced in the renowned case of Mtikila
vs. Attorney General17 where the High Court of Tanzania held that:
“In matters of public interest litigation, this court will not deny standing to a
genuine and bona fide litigant even where he has no personal interest in this
(the) matter.”
The ruling in this case was an eye opener for public litigation generally but it had
implications for environmental rights in particular. The ruling laid a good foundation
for the case of Ballonzi v Trustees of C.C.M,18 where the High Court further developed
the jurisprudence on locus standi by holding that the rule of locus standi must be given
a wide interpretation when the issue at stake relates to human rights. When viewed
from the tripartite linkage between constitutional law, human rights and environmental
rights, then a powerful argument could at that time be made to the effect that the issue
of locus standi would not impede litigants from challenging environmental abuses in
court.
16 Matheson, K and Faraday, G; Environmental Justice: Who has the Standing to Sue the State?
In Innovation: A Magazine of Science, Technology and the Environment Vol.6 No. 2 October,
1999 pp. 10 - 11
17 [1995] T.L.R 31

14
Five years after the progressive development by the High Court, in Ballonzi's case, the
High Court had an occasion to settle the issue of locus standi with regard to litigation
on environmental rights. This was in the case of Felix Joseph Mavika et al vs. The Dar-
es-Salaam City Council.19 The applicants in this case sought an interim order to restrain
the respondents from dumping solid and liquid waste in Vingunguti area in the outskirts
of Dar-es-Salaam City. They argued that by doing so, the area would be polluted and
that lives of residents would be endangered.
The respondents raised an objection, alleging that the applicants did not have locus
standi. In rejecting the respondent’s objection the Court held that the applicants had
locus standi by virtue of section 26 (2) of the Civil Procedure Code and the public
interest doctrine provided for in Article 26(2) of the Constitution. The Court also took
cognizance of its prior decisions in the cases of Joseph Kessy and Festo Balegelye,
where although the issue of locus standi did not surface, the court had granted interim
injunctions to stop the dumping of waste in residential areas. (The two cases are
discussed in greater detail below and their citations are also provided).
Judicial Initiatives in Environmental Protection: An Analysis of Selected Cases
Side by side with the innovation on locus standi in public interest litigation, the judiciary
18 [1996] T.L.R 203
19 Civil Case No. 316 of 2000 High Court of Tanzania at Dar-es-Salaam

15
in Tanzania, as is the case in other jurisdictions, has struggled to travel beyond the
provisions of the Constitution in an attempt to affirm the environmental rights of an
individual. In an effort to attain this, the courts have construed the Constitutional
provisions as having a basis for citizens to enforce compliance with the provisions of
laws relating to environmental protection and management.
This pronouncement was stated in the celebrated case of Joseph Kessy et al Vs. Dar-es-
Salaam City Council20 The Court in this case ordered the City Council of Dar-es-
Salaam to stop dumping solid waste in Tabata and to burn the solid waste it had
disposed off in the area. Briefly, the facts of this case were follows:
On the 1st day of September, 1989 residents (applicants) of Tabata, in the outskirts of the
capital city of Dar-es-Salaam, obtained an interim injunction from the High Court
restraining the City Council of Dar-es-Salaam from dumping garbage collected in the city
in their residential area.
The City Council filed an application requesting the Court to review its decision and set
aside the interim order the following day. Counsel for the City Council was suggesting to
the court that it was a lesser evil to pollute and endanger the lives of people in a specific
area of the City of Dar-es-Salaam, than to do so in the whole City! In rejecting the
Council's application, the honorable judge stated:
20 Civil Case No. 299 of 1988, High Court of Tanzania at Dar-es-Salaam

16
“I will say at once that I have never heard it any where for a public authority, or
even an individual, to go to court and confidently seek for permission to pollute
the environment and endanger people’s lives regardless of their number. Such
wonders appear to be peculiarly Tanzanian but I regret to say that it is not given
to any Court to grant such a prayer. Article 14 of our Constitution provides that
every person has a right to live and to protection of his life by the society. It is
therefore a contradiction in terms and a denial of this basic right deliberately to
expose anybody’s life to danger or, what is eminently monstrous, to enlist the
assistance of the Court in this infringement.”
The court in this case gave a purposeful interpretation of the Constitution to include the
right to a safe and clean environment in the absence of a specific provision. This was
indeed a welcome development in the jurisprudence of environmental law.
However, it would have been more helpful had the court made reference to other
authoritative cases on the subject from other jurisdictions and principles of
environmental law developed by the international community. The court also made
some remote reference to the link between human rights and environmental law in this
case but an attempt should have been made to make reference to human rights
instruments that specifically address environmental rights especially those that Tanzania
has ratified. Instead the Court spent so much time delving onto the tortious and criminal
components of the case.

17
The Court in this case should have emulated the Court of Appeal, which has, on
numerous occasions, made references to international instruments in an attempt to
develop the human rights jurisprudence. The case of Transport Equipment Limited et al
vs. Devram Valambhia,21 is a classic example. In this case, the court had to decide
whether to apply a constitutional provision that was at crossroads with an international
agreement, which Tanzania had signed and ratified. The court did not find any
difficulty "side-stepping" the constitutional provisions by applying the International
Covenant on Civil and Political Rights to grant bail to a judgement debtor, pending
appeal against an order of imprisonment in the execution of a decree.
The court in Kessy's case should also have taken the opportunity to develop
environmental rights further by using approaches that have been adopted and developed
by courts in other jurisdictions that show the tripartite linkage between constitutional
law, human rights and environmental rights.
For example, the court would have made a similar analogy to that made by the Court of
Appeal of Sri Lanka in the case of Environmental Foundation Ltd. v. Ratnasiri.22 In this
case, the Court linked the environment with the right to life and held that appropriate
measures had to be made to protect the environment. In arriving at its decision, the Court
stated that since the government of Sri Lanka had ratified the Vienna Convention on the
Protection of the Ozone Layer, it was bound by obligations under the Convention.
21 [1995] TLR 161
22 Application No. 137 of 1996

18
In view of its finding that "…[S]uch wonders (going to court to seek its permission to
pollute the environment) only appear to be peculiar to Tanzania," the court should have
gone a step further by demonstrating (by way of analogy with authoritative cases from
other jurisdictions), that courts in other countries have not sanctioned such behavior.
Another relevant case in the development of environmental law jurisprudence in
Tanzania is the case of Festo Balegele et al vs. the City Council of Dar es Salaam.23 The
material facts of this case are similar to those in Kessy's case. However, the philosophy
adopted by the court in this case was different. The respondent had been dumping refuse
and waste collected from the City of Dar-es-Salaam near a residential site in an area that
was not designated in the City of Dar-es-Salaam's Master Plan as a dumping site. The
applicants further argued that the dumping of refuse in the area posed a health hazard and
was a nuisance to the residents.
The court agreed with the applicants' submissions and prohibited the City Council from
dumping refuse in the area.
For all intents and purposes, the Court rightly zeroed into the environmental aspect of the
case by observing that:
"It is a statutory duty of the City Council to stop nuisance (environmental pollution) and not to
encourage it…what the respondent (City Council) is doing now is not sanitary land filing as that

19
process is understood but refuse dumping. The dumped refuse attracts flies and emits foul
smell…(causing an environmental health hazard)"
However, instead of pursuing the environmental pollution component of the case
further, the Court chose to accept the ultra-vires argument propounded by Counsel. It
held that the City Council's act was ulta-vires the Local Government (Urban
Authorities) Act, which provides for the manner of disposal of the collected refuse and
waste without endangering the health and lives of people. The court further held that
the act by the City Council was contrary to the City’s Master Plan, which took into
account the protection of citizens' right to a clean and healthy environment.
One notable feature of this case is the reference to the reasoning in Kessy's case only in
passing. The court did not take the opportunity to expound upon the reasoning in the case
of Kessy and thereby contribute further to the development of environmental law
jurisprudence.
The court should also have seized the opportunity to incorporate environmental law
principles and case law developed in other jurisdictions in its ruling as a way of
emphasizing the doctrine promulgated in Kessy's case. The court would also have
justified the reason for the artisan's of the City's Master Plan to accommodate
environmental order by way of analogy with international instruments and supporting
cases.
23 Miscellaneous Civil Case No. 90/1990, High Court of Tanzania at Dar-es-Salaam

20
Counsel in this case was not very helpful as he dealt with technicalities judicial review,
citing numerous authorities on the doctrines of ultra-vires, certiorari and mandumus. The
Court ended up accepting the ultra-vires doctrine and in fact decided the case on the
principle.
The inability of Counsel to assist the Court is also evident in this case. Counsel cited a
case on violation of human rights decided by the Chancery Division in 1899 to support
his case but deviated by relying more on technical aspects of procedure. Counsel did not
make any attempt to guide the court in teasing out the tripartite link between human and
environmental rights after rightly pointing out the human rights dimension of the case.
Also Counsel did not make an effort of citing international instruments and persuasive
cases decided in other jurisdictions in support of the link.
The last case in our analysis of the development of environmental law/rights
jurisprudence is the decision of the Court of Appeal in the case of Sandhu Construction
Co. Ltd. v Peter M. Shayo.24 In this case, the respondent brought an action alleging
that the appellant’s activities in the immediate neigborhood caused excessive noise and
intolerable dust. He submitted that these were interfering with his enjoyment of his
residential house. The respondent had been successful at the High Court where the
court had observed, inter alia, that:
“Matters of public health are clearly more compelling than financial
24 Misc. Civil Application No. 28 of 1983 High Court of Tanzania at Arusha.

21
considerations. Unlike financial loss, damage occasioned to health cannot
possibly be quantified…to re-open such order (and permit the activities to
continue) would thereby not only be precipitating a health hazard to the entire
neighborhood, but also subjecting the victims to nuisance in the form of noise
and dust.”
The Court of Appeal reversed the High Court's decision by applying technical rules of
evidence. Despite its finding that the dust discharged by the appellant was capable of
causing environmental harm, the Court maintained that since the respondent decided to
live in the area, he had consented to tolerating the acts of his neighbours in carrying out
normal and reasonable activities. The Court was of the opinion that the respondent "had
suffered usual and normal incidents attached to living in the area." The Court of
Appeal made no reference to any environmental rights case or environmental protection
principles developed by the international community. It decided the matter purely on
the basis of liability in tort.
Conclusion
The foregoing analysis reveals that judicial enforcement as a means of resolving natural
resources disputes and ensuring compliance in environmental laws is a relatively new
development in Tanzania.
To some extent, the environmental jurisprudence among the authoritative Courts in
Tanzania has grown progressively, developing along lines almost similar to those in other

22
jurisdictions. In some occasions courts have applied constitutional and human rights
principles to invoke the right to a safe and clean environment in the absence of express
Constitutional and legislative provisions.
One of the salient features in the development of environmental rights jurisprudence by
the Tanzanian Courts is their failure to seize the opportunities to expand the horizons of
environmental rights by applying principles developed by the international community
and using cases from other jurisdictions to justify their rulings.
The approach used by the authoritative courts in developing human rights jurisprudence
at a time when there was no Bill of Rights provisions in the Constitution does not seem to
recur in their rulings on environmental rights. However, with the progress already noted
in the two High Court cases it is expected that the judiciary will play a more positive role
in discharging its duties in such disputes.
The analysis also shows that the Court of Appeal waived the opportunity to contribute to
the development of environmental jurisprudence by preferring a more cautious approach.
Instead of seizing the opportunity to throw some light in the rather virgin area, the Court
of Appeal opted for setting aside the High Courts ruling, which apparently reflected some
aspects of developing environmental law jurisprudence. In its stead it applied the
traditional principles of the law of tort to resolve the matter. Save for the innovation on
locus standi, the contribution of the Court of Appeal of Tanzania in developing the
jurisprudence of environmental justice in Tanzania has not been insignificant.

23
The High Court on the other hand has made an effort. A plausible explanation for the
Court of Appeal’s seemingly inactiveness maybe due to the fact that many cases of
environmental justice decided by the High Court are not appealed against.
With the progressive increase in the rate of awareness on environmental rights and justice
among members of the legal profession (the bar and the bench) in Tanzania, a lot more
can still be achieved. More concerted efforts should, however, be made by creating more
awareness and sensitizing members of the bar and the bench on environmental rights
jurisprudence at the international and regional levels. The Council for Legal Education,
the Judiciary and the Bar Association, in collaboration of other major stakeholders in the
training of law in the country should be in the forefront in spearheading the efforts.

24
SELECTED REFERENCES
Books
Bagachwa, M.S. et al, Policy Reforms and the Environment in Tanzania: DUP, 1995
Balls, S. Environmental Law 2nd Edition Blackstone Press Ltd London 1994
Faure, M.G, Enforcement Issues for Environmental Legislation in Developing
Countries. The UN University, INTECH, UNO/INTECH 1995
Garbult, J. Environmental Law: A Practical Handbook, Willey Chancery 1995.
Grubb, M. et al The Earth Summit Agreement: A Guide and Assessment An Analysis of
the Rio 1992/(UNCED) Earthscan Publication Ltd, London 1993
Hughes, D. Environmental Law, Butterworths – London 1992
Jewell, T. and Steele, J. Law in Environmental Decision Making; National European
and International Decision Making; Clarendon Press Oxford, 1998
Malcom, R. A. A Guidebook to Environmental Law, Sweet and Maxwell, London 1994
McGrecgory, G.I Environmental Law and Enforcement, Lewis Publishers, 1994
Njau, G. and Mugurusi, E. Towards Sustainable Environment in Tanzania, Friedrick
Nauman Stiffung, 1995.
Peter, C.M. Human Rights in Tanzania: Selected Cases and Materials RÜDIGER
KÖPPE VERLAG. KÖLN
UNEP, Industries and Enforcement of Environmental Law in Africa: Industry Experts
Review Environmental Practice, 1998
Mtaki, C.K. Legal Aspect of Environmental Protection in Tanzania: The Case of
Industrial Waste Management. Ph.D. Thesis, University of Gent. 1999 (Mimeo).

25
Reports Papers and Articles
Kabudi, P.J. Legal and Institutional Framework for Sustainable Environmental
Management in Tanzania: An Overview: (Mimeo), 1999
Laura H. Environmentally Related Legislation in Tanzania, Division of Environment
Ministry of Natural Resources Tourism and Environment (MTNRE) 1994
Makaramba R.V and Macha, V.N. Development and Harmonization of EIA Regulations
and Guidelines Report to the United Republic of Tanzania on Environmental Law and
Institutions in Africa 1997
Matheson, K and Faraday, G; Environmental Justice: Who has the Standing to Sue the
State? In Innovation: A Magazine of Science, Technology and the Environment Vol.6
No. 2 October, 1999 pp. 10 - 11
Ministry of Tourism Natural Resources and Environment 1994 - National Environment
Action Plan: A First step, Dar es Salaam (Mimeo)
NEMC Guidelines for Environmental Impact Assessment 1997
NEMC National Conservation Strategy for Sustainable Development (NCSSD) (Mimeo)
1995
NEMC, A Study of the Mechanism for Monitoring, Reporting and Enforcing
Environmental Laws and Standards. TISCO Report submitted to NEMC (Mimeo) 1998
Network for Environment and Sustainable Development in Africa: Institutional
Mechanism for Environmental Management in Africa, National Environmental Action
Plan, Ghana 1995
UNEP: Environmental Law in UNEP, 1991
WCED: Our Common Future Report, of the World Commission on Environment and
Development, Oxford University Press, 1987.

26
Wildlife Conservation Society of Tanzania (WCST) et al The Proceedings of the
Workshop on “Putting Environment on the National Agenda”, held at Kilimanjaro
Hotel, July 1996.