The Undelivered Promise : Constitutional Environmental Rights and Judicial Redress in Kenya and South Africa

Abstract

The project of constitutionalising environmental rights is nearly complete with over two-thirds of the United Nations member states having enshrined these rights in their constitutions. Despite the widespread adoption, recent studies on environmental protection indicate that the project has not improved in commensurate terms. Environmental law scholars are now engaged in bridging the ‘implementation gap’. In an attempt to locate the implementation gap problem, this paper analyses the achievements made under the environmental rights constitutionalisation project. Using Kenya and South Africa as case studies, the author finds that while substantial progress has been made, the conceptualisation of the right to a clean and healthy environment has yet to receive a harmonised meaning. The impact, this paper notes, is the differentiated interpretation and application that greatly undermine environmental protection. As a remedy, the author argues that the adoption of a country’s ‘fundamental value[s]’ as the basis of understanding environmental rights not only provides the widest protection but also allows a harmonised application.