Introduction
African environmental constitutionalism derives from the broader concept of environmental constitutionalism, which operates on a spectrum from ‘thin’ to ‘thick’. According to Kotzé, the thin, and arguably more limited, variant entails the application of constitutional environmental rights to achieve environmental protection goals. In contrast, the ‘thick’ model integrates a wide array of essential governance elements, such as environmental rule of law, separation of environmental governance powers, an independent environmental judiciary, environmental constitutional supremacy, environmental democracy, and environmental rights. African environmental constitutionalism assumes a distinctly African character in how these aspects have evolved within African governance institutions and courts to address human rights violations and environmental challenges on the continent. A quintessential example of this normative innovation is the continent’s pioneering role as the originator of the first international human rights instrument to explicitly guarantee the right to a healthy environment (R2HE) through Article 24 of the African Charter on Human and Peoples’ Rights, which provides that “all peoples shall have the right to a general satisfactory environment favourable to their development.”This pioneering act of norm leadership preceded and arguably laid the foundation for similar developments by other regional human rights bodies and the eventual recognition of the right by the United Nations. Africa’s role in evolving the R2HE therefore challenges the ubiquitous commentary that the 2022 UN recognition of the R2HE is somehow new or groundbreaking.
The African Charter as an Instance of African Environmental Constitutionalism
Although the African Charter on Human and Peoples’ Rights is not a constitution in the formal sense, it can be understood as quasi-constitutional in a broader functional or normative sense. This characterisation rests on three considerations that allow the Charter to function comparably to domestic constitutions. First, it codifies a set of shared, foundational norms for African states, such as human dignity, equality, and solidarity, which serve as the moral and legal bedrock for governance. Second, the Charter’s articulation of peoples’ rights and duties mirrors the structural function of domestic bills of rights, designed to organise society and constrain state power. Finally, these provisions provide a metric for legitimacy, intended to guide member state behaviour and subject their policies to scrutiny. This functional equivalence is most forcefully demonstrated by the African Court on Human and Peoples’ Rights, which, acting on this quasi-constitutional mandate, has consistently entertained litigation challenging the acts of sovereign African states. It is against this backdrop that the R2HE within the Charter can be understood as an instance of African environmental constitutionalism.
The African Charter has shaped the global BHR landscape by providing the normative foundation for African regional dispute-resolution bodies to address environmental harm linked to business activities as a human rights issue. Through their interpretation of the Charter’s environmental rights, these bodies have clarified the scope of the state’s duty to protect against third-party abuses, affirmed the corporate responsibility to respect human rights, and strengthened the right to an effective remedy. As discussed below, this body of jurisprudence illustrates the African human rights system’s operationalisation of the three pillars of the UN Guiding Principles on Business and Human Rights.
African Jurisprudence as a Prescient Articulation of the State Duty to Protect
The contribution of African regional human rights institutions to business and human rights (BHR) is perhaps most evident in their evolving jurisprudence applying Article 24, together with other Charter rights, to hold states accountable for failing to prevent environmental harm associated with business activities. An early and seminal illustration is the landmark SERAC case, which challenged the Nigerian government’s failure to prevent the severe environmental degradation and related human rights violations experienced by the Ogoni people as a consequence of oil extraction in the Niger Delta.
In its decision, the African Commission on Human and Peoples’ Rights articulated the positive obligations incumbent upon Nigeria to protect rights-holders from harm caused by the conduct of public officials, as well as abuses committed by private actors, including multinational corporations. (SERAC, paragraphs 52, 57, 69). Beyond asserting the state’s positive duty, the SERAC decision is significant because it defines the specific, actionable measures that states must take to fulfil it. The Commission established that the duty to protect human rights must be realised through a comprehensive set of actions, including the obligation to prevent environmental harm, investigate abuses, punish those responsible, and remediate environmental damage.(SERAC, paragraph 69). This ruling clearly articulates Pillar I of the UN Guiding Principles (UNGPs) because it directly addresses the scope of the state’s duty to protect against human rights abuses committed by state officials and third parties, including business enterprises. It is notable that this ruling predates the UNGPs by a decade, making it a prescient operationalisation of Pillar I.
The African Court reinforced the SERAC ruling in its 2023 judgment in the LIDHO case. Here, the Court addressed the 2006 dumping of toxic waste in Abidjan by the ship Probo Koala, operated by a company contracted by Trafigura Limited. The Court found Côte d’Ivoire in violation of Article 24 and other Charter rights for failing to prevent the environmental disaster. It held that the state’s positive obligation requires it to take proactive steps to prevent such harm before it occurs, act promptly and effectively to mitigate and remediate harm if it occurs, and ensure justice after a violation, including investigating, prosecuting, and ensuring full reparation for victims.(LIDHO, paragraphs 179 -186).
Like SERAC, the LIDHO judgment operationalises Pillar I of the UNGPs by confirming that a state’s failure to regulate or prevent harmful corporate activities constitutes a direct violation of its duty to protect rights-holders from the conduct of third parties violating human rights.(LIDHO, paragraphs 131-141). Unlike SERAC, however, LIDHO carries the added weight and authority of being a binding judicial decision. SERAC was issued by the Commission, whose findings are recommendatory and lack strict legal force, whereas LIDHO was delivered by the Court, whose judgments are binding on states and carry enforceable obligations. To be sure, the practical efficacy of the Court’s judgments is often undermined by inconsistent implementation at the domestic level. Nevertheless, as a matter of legal authority, LIDHO marks an important evolution in the Charter’s contribution to Pillar I from soft-law guidance to the hard-law authority of binding judicial enforcement.
African Case Law Reinforcing the Corporate Responsibility to Respect
Jurisprudence from African regional human rights bodies has similarly contributed to the normative development of Pillar II of the UNGPs. Pillar II establishes that business enterprises bear an independent responsibility to respect human rights by avoiding infringements on the rights of others and addressing adverse human rights impacts with which they are involved. To discharge this responsibility, businesses are expected to implement human rights due diligence processes that enable them to identify, prevent, mitigate, and account for their actual and potential human rights impacts. Although this responsibility exists independently of states’ obligations, its effective realisation is facilitated by the fulfilment of the state’s Pillar I overarching duty to create the regulatory and policy conditions that make such respect possible.
One of the most significant contributions of African jurisprudence to Pillar II has been the explicit judicial recognition of corporate responsibility in cases of environmental harm. The LIDHO judgment exemplifies this development by affirming the normative relevance of the UNGPs within the African human rights system. Rather than referring to the UNGPs as persuasive guidance, the Court relied on them to articulate the autonomous nature of corporate human rights responsibility, observing that “the responsibility of enterprises to respect human rights is independent of the capacity or determination of States to protect human rights.” (LIDHO, paragraph 142). The judgment reinforces the central premise of Pillar II that business enterprises bear an independent responsibility to respect human rights regardless of whether States fulfil their own human rights obligations. In doing so, the Court strengthens the normative authority of Pillar II and demonstrates its applicability in the context of corporate environmental harm.
The Court further identifies the key elements through which this responsibility is operationalised, including public human rights commitments, ongoing due diligence to identify the consequences of business activities, and procedures to address harms arising from those activities. (LIDHO, paragraph 142). These requirements closely mirror the human rights due diligence framework established under Pillar II, which requires businesses to identify, prevent, mitigate, and account for adverse human rights impacts.
While regional jurisprudence may not always expressly cite the UNGPs, the substance of these rulings parallels and anticipates the UNGP pillars. This position is evident in both SERAC and LIDHO decisions, which recognise that Nigeria and Côte d’Ivoire bear positive obligations to establish and enforce the legal and regulatory frameworks necessary to ensure that business enterprises respect human rights and environmental standards. In SERAC, the Commission directed Nigeria to ensure that “appropriate Environmental and Social Impact Assessments (ESIA) are prepared for any future oil development.”(SERAC, paragraph 69). This ruling highlights that mandatory legislative requirements are often the only force that compels companies to perform risk assessments; without a state law requiring an ESIA, the corporate duty to respect often remains theoretical. Moreover, the Commission directed the government to monitor oil companies’ operations effectively. This implies that internal corporate compliance is insufficient without an external, state-led regulatory body to verify it. The enabling environment envisaged in the ruling is an independent inspectorate capable of ensuring corporate compliance with human rights and environmental standards.
Echoing the Commission’s approach, the Court in LIDHO reinforced Pillar II by directly addressing the legislative vacuum that enables corporate impunity. The judgment explicitly links the corporate act of toxic waste dumping to the state’s failure to take appropriate legal, administrative, and other measures to prohibit the importation of dangerous wastes onto its territory, as prescribed by the Bamako Convention. (LIDHO, paragraph 184) In light of this gap, the Court ordered the respondent state to “amend its laws in order to provide for the responsibility of corporate entities, including multinationals, for acts in relation to the environment and the handling of toxic waste.”(LIDHO, paragraph 247). The Court’s directive mandating the state to codify multinational liability implies that the responsibility to respect is made meaningful through a legal regime that defines corporate duties, establishes enforcement mechanisms, and provides remedies in case of harm. While the order is an instruction to the state (Pillar I), its practical effect is to strip corporate actors of the ability to exploit legislative gaps regarding toxic waste.
African Innovation in Defining the Substantive Contours of Effective Remedy
The third pillar of the UNGPs relates to the shared obligation for states and business actors to provide an effective remedy. The UN Working Group on Human Rights and Transnational Corporations elaborates the substantive aspects of an effective remedy by deploying the metaphor of a “bouquet of remedies”, to communicate the idea that remedies must be holistic and tailored to the specific harm suffered by rights-holders. Consequently, victims should be afforded a diverse range of reliefs, such as restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. Presaging this expansive approach, the SERAC decision mandated that Nigeria implement a range of interventions tailored to the specific needs of pollution victims. These measures included halting ongoing violations, investigating abuses linked to state–corporate conduct, and providing compensation and resettlement. (SERAC, paragraph 69). Though its language was recommendatory, SERAC conceptually models the breadth of an effective remedy by linking redress to systemic reform, environmental rehabilitation, and the empowerment of affected communities.
Building on the SERAC precedent, the LIDHO judgment concretely articulates the Working Group’s understanding of an effective remedy and demonstrates what Pillar III can look like in practice. The Court ordered a suite of remedies calibrated to redress the immediate injury suffered by the victims and to implement reforms targeting the underlying factors that enabled the violation. Specifically, it ordered Côte d’Ivoire to conduct an independent investigation and publish its findings, provide victim assistance, ensure transparent management of compensation funds, institute environmental and port-monitoring reforms, and introduce legislative changes to ensure corporate liability. (LIDHO, paragraphs 201-261).
Conclusion
Africa has not remained on the sidelines in developing BHR standards. This analysis highlights how jurisprudence from the African Commission and Court has significantly contributed to the field by articulating the state’s duty to protect, reinforcing corporate responsibility, and defining an expansive understanding of effective remedies. Notably, some of these developments predate the adoption of the UN Guiding Principles, establishing Africa as an early and influential voice in the global discourse. Importantly, this normative leadership is not confined to regional forums. Although African national courts do not always expressly invoke the UNGPs, their jurisprudence increasingly reflects the principles underpinning the UNGP framework by reinforcing States’ protective obligations, recognising the human rights responsibilities of business enterprises, and requiring effective remedies in cases involving corporate environmental harm.
