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The Constitutional Environmental Duties of African Persons

Published online by Cambridge University Press:  01 October 2026

Lovleen Bhullar Open the ORCID record for Lovleen Bhullar [Opens in a new window]
Lovleen Bhullar*
Affiliation:
Department of Land Economy, University of Cambridge, Cambridge, UK
*
Email: lb2088@cam.ac.uk
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Abstract

This article examines the constitutional environmental duties (CED) of legal persons (natural and artificial) in Africa. Based on a systematic analysis of the constitutions of 54 African countries, it provides empirical evidence of the substantial presence of CED of persons and sheds light on the framing of their relationship with constitutional environmental rights and the environmental duties of the state. This account of a specific category of duties of persons, from a non-Western perspective, is an important contribution to legal scholarship. It unsettles the dominant paradigm of “rights of individuals and duties of the state” by challenging the dismissal of the CED of persons as “symbolic” or “aspirational” and highlights the functional elements of these duties, which can be used to address violations of rights and / or the non-performance of duties by the state. These findings also have broader implications for constitutional, environmental and human rights law.

Keywords

Africaconstitutionsdutiesenvironmentpersonsrights

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Research Article
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Journal of African Law , First View , pp. 1 - 19
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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
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© The Author(s), 2026. Published by Cambridge University Press on behalf of SOAS University of London.

Introduction

Environmental constitutionalism offers a higher-order entrenchment and protection to the environment, in a constitution rather than in domestic legislation.Footnote 1 It is made up of the rights and duties of the state as well as the duties of individuals; such provisions are found in several national constitutions around the world.Footnote 2 Environmental constitutionalism thus reflects a shift from the traditional view that a constitution regulates only the vertical relationship between the state and the individual, and recognizes the possibility of a horizontal application of constitutional duties to non-state actors, including individuals.Footnote 3 However, human rights scholars have expressed concerns about the use of duties to limit or deny rights, and the performance of duties by individuals becoming a precondition for the enjoyment of human rights or the performance by the state of its duties towards rights holders, thus diluting the state’s accountability.Footnote 4 Individuals and communities in countries with weak or non-existent rights protection are likely to be more vulnerable. As a result, the constitutional environmental duties (CED) of persons and their relationship with constitutional environmental rights and the duties of the state remain largely unexamined.Footnote 5 There are only brief references to the CED of persons in scholarship, for instance as the “obligations on individuals to promote environmental values or ‘civic duty’ provisions”, and it is said to be difficult to ascertain their legal significance.Footnote 6 In a context where rights are under increasing pressure around the world, there is an urgent need to engage with the duties of persons to understand their potential and the limits in achieving the objective of environmental constitutionalism.

While international human rights law remains primarily concerned with the rights of individuals and the duties of the state, some instruments explicitly affirm or at least imply that individuals can own duties.Footnote 7 The African approach to international (human rights) law is non-individualist, non-statist and collectivist; it is also described as communitarian.Footnote 8 Part of the reason is that the duties as well as rights of persons formed an integral component of pre-colonial Africa.Footnote 9 Gittleman says that an emphasis on individual duties to the community is “firmly ingrained in African tradition”.Footnote 10 In postcolonial Africa, all countries except Morocco have ratified or acceded to the African (Banjul) Charter on Human and Peoples’ Rights 1981 (the African Charter or Charter). This is described by Chirwa and Chenwi as a distinctive and progressive regional human rights architecture, which for the first time incorporates not only the rights but also the specific duties of individuals in a binding legal instrument.Footnote 11 Further, African constitutions were the first to recognize the concept of duties in a substantive sense.Footnote 12 Ouguergouz notes that “[t]he concept of individual duty finds favour with a great many States regardless of their political system or level of economic development; the constitutions of the African States are therefore no exception in this area”.Footnote 13 However, there is little scholarly engagement with the duties of persons in African constitutions generally, and even less with environmental duties specifically.Footnote 14 This is striking considering the extensive coverage of the right to environment in Africa, both at the regional level and in the context of specific countries.Footnote 15 Scholars have also offered an African critique of this right.Footnote 16 The constitutional rights and duties of African states are also in the spotlight as a part of climate litigation and climate constitutionalism.Footnote 17 African constitutions include references to energy as a right, duty or resource of the state, and some of the younger African constitutions include explicit provisions relating to climate change.Footnote 18 Yet the presence and role of the CED of persons in African constitutions in achieving the ultimate objective of environmental constitutionalism, namely environmental protection, remain unexplored.

This article addresses this knowledge gap. Based on a systematic analysis of the constitutions of 54 African countries, it provides empirical evidence for the substantial presence of the CED of African persons and sheds light on the framing of their relationship with constitutional environmental rights and the duties of the state. This account of a specific category of the duties of persons from a non-Western perspective is an important contribution to legal scholarship. It unsettles the dominant paradigm of “rights of individuals and duties of the state” by challenging the dismissal of the CED of persons as “symbolic” or “aspirational” and highlighting the functional elements of these duties, which can be used to address violations of rights and / or the non-performance of duties by the state. These findings also have broader implications for constitutional, environmental and human rights law.

Other reasons for focusing on Africa relate to its area, population and natural environment, as well as to the Africans who are constitutional rights holders and duty bearers. Africa is the world’s second largest (30.3 million square kilometres) and second most populous (1.4 billion people) continent after Asia; it covers 20 per cent of the Earth’s total land area and has 18 per cent of the human population. In addition, Africa is a resource-rich continent, with oil and gas, minerals, iron ore, precious metals, forests and wildlife. At the same time, in 2024, sub-Saharan Africa was home to 67 per cent of the world’s population that was living in extreme poverty (below USD 2.15 per person per day), which is likely to affect people’s abilities to seek enjoyment of their constitutional rights and perform their constitutional duties.Footnote 19 Finally, the continent faces several serious environmental challenges, including land degradation, deforestation, biodiversity loss and extreme vulnerability to climate change.Footnote 20

The identification of the CED of African persons in 54 countries is not a straightforward exercise. For the texts of constitutions, I relied on the Constitute project (constituteproject.org), a tool and database for comparative constitutional law developed by the Comparative Constitutions Project at the University of Texas at Austin and the University of Chicago, which provides updated and translated versions of all national constitutions. To capture the diversity of the environment in African countries, which forms the object of these duties, the following search words were used: “biodiversity”, “forest”, “land”, “natural resources”, “water” and “wildlife”, in addition to the neutral term “environment”. The search and analysis were restricted to express constitutional provisions concerning the CED of African persons that refer to the environment and / or one of its components. Other constitutional provisions, such as preambular language and the duties of persons to respect the rights of others, may be implicit sources of CED, but they are outside the scope of this article. An inductive approach was then adopted to explore the CED of African persons, discover new patterns within specific findings and draw generalizable conclusions.Footnote 21 Some of the main limitations of this inductive approach are that its conclusions can be invalidated by a single new observation, and that it can lead to overgeneralization and inaccurate conclusions based on incomplete data.Footnote 22 A large dataset of all 54 African countries was used to address these concerns. However, as some of these constitutions are temporary (Niger, South Sudan and Sudan), not implemented (Eritrea) or not functional (Libya), the CED in the constitutions of four of these countries (with the exception of Libya) have been brought to the attention of readers in the main text and footnotes for ease of reference. Additionally, an Internet search was carried out for any amendments or revisions to these 54 constitutions that the Constitute project might not have captured as of 1 September 2025. This inductive approach was supplemented by a deductive approach that relied on the limited scholarship on the CED of persons as well as the extensive scholarship on constitutional environmental rights and the duties of the state, in order to unpack the relationship among these three constitutional environmental provisions as essential elements of environmental constitutionalism.

The rest of this article is structured as follows: the first section discusses several substantive features of the CED of African persons that shed light on their contribution to environmental constitutionalism. This section first engages with the nature, scope and content of the CED of African persons, with reference to the external and internal factors leading to their inclusion in constitutions. The implications of identifying (or not) different types of legal persons in Africa as environmental duty bearers for the distribution of duties among them are then considered. This is followed by an exploration of the relationship between African persons and the state as constitutional environmental duty bearers and the extent to which there is a correlative relationship between the constitutional environmental rights and duties of African persons. Finally, a focus on the corresponding human and non-human rights holder(s) calls attention to how the CED of African persons accommodate interests across spatial and temporal dimensions as well as more-than-human considerations. The subsequent section engages with the issues of enforcement and the justiciability of the CED of African persons. The conclusion summarizes the key findings and suggests a way forward.

Substantive dimensions

A textual analysis of the constitutions of 54 African countries reveals that most include the environmental duties of the state (45), followed by right(s) to the environment (32) and the environmental duties of persons, variously described (30) (see the Appendix).Footnote 23 Five of these 54 constitutions (Eswatini, Gambia, Ghana, Tanzania and Zambia) do not recognize an environmental right but set out the environmental duties of the state and of persons. There are no instances where only the CED of persons are set out. The rest of this section focuses on the substantive dimensions of the explicit CED of persons in African constitutions.

What is the nature, scope and content of the duty?

It is important to understand what the “environment” is that forms the object of the CED of African persons. According to Shelton, “[t]he term ‘environment’ is neutral in itself, implying no measure of environmental quality. As a result, texts that speak of the right to environment generally add qualifying terms … Constitutional texts … add standards of varying specificity.”Footnote 24 This is reflected in the articulation of the right to environment in national constitutions around the world as “a right to [verb] the environment”, without providing a definition of the environment that is the focus of the right.Footnote 25 In most African countries, the CED of persons are similarly worded, that is, “a duty to [verb] the environment”. In a few countries with newer or amended constitutions, this duty explicitly encompasses specific components of the environment, such as biodiversity and natural resources, showing a greater responsiveness to the domestic context and environmental challenges.Footnote 26

The external and internal factors leading to the incorporation of the CED of African persons offer a useful starting point for identifying their nature, scope and content. This is because “[t]he African State is constituted through a syncretic configuration of international law from above, and customary laws and traditional authorities from below”.Footnote 27 International law has influenced the downward diffusion and framing of the right to environment in regional human rights instruments and in national constitutions.Footnote 28 Reference is often made to Principle 1 of the Stockholm Declaration, the key output of the United Nations Conference on the Human Environment 1972, which reads: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.”Footnote 29 The Stockholm Declaration has received lesser attention for its incorporation of the language of individual responsibility towards the environment for the first time at the international level. For instance, it recognizes that “[t]o defend and improve the human environment for present and future generations has become an imperative goal for mankind”.Footnote 30 Further, Principle 1 of the Declaration states: “Man … bears a solemn responsibility to protect and improve the environment for present and future generations.”

The Stockholm Declaration has exerted some influence on the formulation of the CED of African persons. Most African constitutions use the verb “protect” to describe the CED of persons,Footnote 31 at least nine include an explicit duty to “defend” the environment,Footnote 32 and at least one refers to improvement of the environment.Footnote 33 At the same time, several other verbs are used to describe the CED of African persons that find no mention in the Stockholm Declaration, including the duty to respect, promote, preserve, conserve, safeguard, create, enhance, participate, maintain, utilize and cooperate. However, several of these are also used in different constitutions around the world along with the right to environment, and discussions of those constitutional environmental rights could be relevant to gaining an understanding of the CED of persons in specific African jurisdictions.Footnote 34

At the regional level, the pre-colonial African context explains the importance attached to the concept of duties and its relationship to rights. During that period, the main beneficiaries of individual duties were the family and community, not the state.Footnote 35 The Dakar Draft of the African Charter confirms that “[t]he conception of an individual who is utterly free and utterly irresponsible and opposed to society is not consonant with African philosophy”.Footnote 36 It further sets out the guiding principle that the Charter “should reflect the African conception of human rights. It was not therefore necessary to copy simply and purely what was done in other regions or at world level. The African Charter should take as a pattern the African philosophy of law and meet the needs of Africa.”Footnote 37 The African Charter includes duties as a manifestation of this guiding principle.Footnote 38 It explicitly sets out several duties of individuals in specific as well as general terms, and in substantive provisions rather than as a vague preambular statement.Footnote 39 For this reason, it is recognized as the “first human rights document to articulate the concept [of duties] in any meaningful way”.Footnote 40 At the same time, echoing the resistance to the language of duties found elsewhere, the inclusion of duties of individuals in the Charter raised concerns about potential abuse by states to dilute rights.Footnote 41 However, these “duties provisions have received relatively little attention”.Footnote 42 Notably, the Charter recognizes the right of all peoples to “a general satisfactory environment favourable to their development”, and is often cited as the inspiration for the inclusion of the right to environment in several African constitutions.Footnote 43 However, the fact that the Charter does not set out any explicit environmental duties of African peoples may explain why it is not cited as a direct influence, although it pre-dates all the original or amended constitutions of African countries that have incorporated the CED of persons.

A textual analysis of the African constitutions also demonstrates that diffusion or borrowing of the concept of the environmental duties of persons is not always vertical and unidirectional, from international or regional instruments to the domestic legal framework. In fact, the use of similar language in the constitutions of different African countries to articulate the CED of persons points towards horizontal diffusion or borrowing between those countries, in this case of a communitarian approach with its emphasis on the relationship between individuals and the community.Footnote 44 The constitutions of Burkina Faso and Mali include a duty of all to protect, defend and promote the environment, while the constitutions of Cabo Verde, Kenya and Zambia include a duty to cooperate with other actors in respect of environmental protection. This duty to cooperate, of persons in Kenya and Zambia or associations in Cabo Verde, has a vertical component where the other party is a state organ or institution and a horizontal component where it involves other persons.Footnote 45 A granular analysis of the CED of persons in specific original, amended or revised constitutions is required to determine the influence of different international, regional and domestic factors on their inclusion in domestic constitutions at different points in time.

Which persons are constitutional environmental duty bearers?

The CED of persons merit attention given the growing emphasis on individual responsibilities as part of the response to environmental degradation and the climate crisis, often reflected in the universal concept of environmental or climate citizenship. Environmental citizenship focuses on the collective duties and responsibilities of individuals as global citizens towards other human beings and the environment.Footnote 46 It is described as stewardship or “a general, universal duty of care for the planet”.Footnote 47 In contrast, the legal dimension of citizenship centres on the formal status of the citizen, defined by rights and responsibilities.Footnote 48 National constitutions tend to express this legal dimension in the form of liberal rights and republican duties or responsibilities.Footnote 49 A clear understanding of the nature, scope and limits of the CED of persons and the duty bearers themselves facilitates the identification of alignments and misalignments between the universal and democratic conceptions of environmental citizenship.

International human rights law uses the term “individuals” to refer to natural persons who are not corporations as rights holders.Footnote 50 May and Daly identify the CED of “all”, the “citizen”, “everyone”, “inhabitants”, “people” or the “person”, although there are a few references to “individual(s)” as well.Footnote 51 Table 1 highlights the similarity of words and phrases used to describe environmental duty bearers and rights holders in African constitutions; the terms “citizens” specifically as well as “persons”, “people” and “individuals” generally are used to describe environmental duty bearers. National constitutions or legislation may specify different eligibility requirements for citizenship. Further, several African constitutions identify more than one type of duty bearer, which means that some CED are owed by every person while others are limited to citizens.Footnote 52 As a result, while the CED of persons can contribute to universal environmental citizenship to some extent, all persons within a jurisdiction might not be identified as bearers of CED. Further, constitutions do not tend to acknowledge the differences between environmental duty-bearing persons based on characteristics such as socio-economic class, gender, ethnicity, race, religion, age or geographical origin.Footnote 53 Like the communitarian approach, constitutions appear to be neutral.Footnote 54 This universalizing, isomorphic approach towards the representation of constitutional environmental duty bearers may render invisible differences in the relative capacity or willingness of different legal persons to perform CED and the different consequences of non-performance. This in turn may result in the inequitable distribution of CED among different duty bearers having different characteristics.

Table 1.

Environmental duty bearers and rights holders in African constitutions

Duty bearers and rights holders are most often described with universal terms such as all, all persons, or everyone, with some entries naming citizens, communities, or future generations. See long description.
Table 1 Long description

Two columns list constitutional environmental duty bearers and constitutional environmental rights holders. Duty bearers are listed as, all; all persons; everyone; citizens or all citizens; every citizen; a person; all people or citizens of country; community or communities; each natural or legal person; each one; and all individuals or every individual. Rights holders are listed as, all; all persons; everyone; citizens or all citizens; every citizen; any or every person; people of country; community; every person of country; man and woman; and future generations.

Turning from natural persons to artificial persons, the constitutions of Cote d’Ivoire, Kenya and Zambia adopt an expansive understanding of the environmental duty bearer to include different categories of legal persons (natural and artificial persons).Footnote 55 At a time when there is a growing demand to hold corporations accountable for violations of human rights, including the right to environment, the recognition of corporations – who are the paradigmatic artificial persons – as constitutional environmental duty bearers can provide a legal basis to seek the prevention, control and remediation of environmental harm from corporations.Footnote 56 This is in addition to the CED of natural persons as owners or employees of corporations.

The inclusion of communities as duty holders is important given that the environment is a public good indispensable to the community and society. At the same time, the overwhelming reliance on communities, especially indigenous peoples, as environmental defenders performing their CED to defend the environment raises concerns in respect of their personal safety and the availability of resources.Footnote 57 Non-governmental organizations (another group of artificial persons) face similar challenges while defending the environment.Footnote 58 Further, indigenous peoples are often identified as stewards, custodians or representatives of the rights of nature.Footnote 59 These examples also highlight the failure of a state to perform its constitutional environmental duties to prevent violations of the rights of natural persons and nature by third parties, including corporations who may also owe CED in some African jurisdictions. A related concern is the growing recognition of artificial legal persons such as corporations as holders of rights to privacy and freedom of expression (just like rights-holding individuals and communities). The clubbing together of natural and artificial persons as rights holders and constitutional environmental duty bearers may obscure power imbalances in the respective ability of these legal persons to seek fulfilment of their rights and their capacity and willingness to perform their CED. Legislation ought to acknowledge such power imbalances and distinguish the different nature of the environmental duties of such persons as well as the consequences of non-performance. Further, the judiciary ought to take into account such power imbalances when interpreting statutory provisions concerning the environmental duties of natural and artificial persons in cases of non-performance. This becomes especially relevant given the challenges faced in holding corporations accountable for violations of rights, including the right to environment.Footnote 60

What is the relationship between persons and the state as constitutional environmental duty bearers?

The duties of the state corresponding to human rights have been used to clarify the significance and content of human rights and strategies for their realization.Footnote 61 These duties are often expressed in terms of the tripartite typology of the obligations to respect, protect and fulfil human rights.Footnote 62 The obligation to respect signifies that states must refrain from interfering with or hindering the enjoyment of human rights; the obligation to protect demands that individuals and groups should be protected from human rights abuses, especially by non-state actors, including corporations. The obligation to fulfil requires states to take positive action to facilitate the enjoyment of basic human rights. These obligations may be positive, negative or hybrid (both positive and negative) in nature.Footnote 63

The CED of African persons exhibit similar characteristics. The verbs used to describe these duties encompass the positive duty to improve, cooperate, create, promote or enhance, and the hybrid duty to protect, preserve, conserve, safeguard, maintain or defend the environment. However, the state and persons are different types of environmental duty bearers in terms of the spatial and temporal scope of their duties and the resources at their disposal to perform those duties. It would be indefensible to impose CED on resource-poor persons in African countries, especially in a context where the duties of the state corresponding to socio-economic rights are subject to progressive realization in some countries.Footnote 64 Here, it is important to highlight a paradox. As mentioned in the introduction, Africa possesses significant natural resources: however, it also suffers from the “curse” that led to extensive natural-resource extraction during colonial rule as well as by local elites, resulting in unequal distribution of wealth, low economic development and the highest poverty rates globally.Footnote 65

As mentioned above, the constitutions of Kenya and Zambia articulate the CED of persons as a positive duty to cooperate with the state and with other persons. These CED are broadly worded: protecting and conserving the environment and ensuring ecologically sustainable development and use of natural resources in Kenya; maintaining a clean, safe and healthy environment, ensuring ecologically sustainable development and use of natural resources, respecting, protecting and safeguarding the environment, and preventing or discontinuing an act which is harmful to the environment in Zambia. In Cabo Verde, the duty bearers are confined to environmental defence associations, which have a limited but specific duty to cooperate with the state and municipalities to adopt policies to defend and preserve the environment. In each case, the duty to cooperate appears to envisage the state as the primary environmental duty bearer, with persons playing a secondary supporting and facilitating role.Footnote 66

Finally, the performance of CED by persons may be contingent upon performance by the state of the procedural elements of its constitutional environmental duties, namely provision of information, opportunities for public participation in decision-making and implementation, and access to justice. The Constitution of Zambia provides for access to environmental information to enable people to preserve, protect and defend the environment.Footnote 67 It also imposes a duty on the state to ensure the effective participation of the people in the development of policies, plans and programmes for the management and development of natural resources and the environment, and to encourage public participation in their utilization.Footnote 68 Turning to access to justice, the Constitution of Uganda, which makes a direct link between the constitutional right to a clean and healthy environment and the duty to protect it, provides that “[a]ny person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation”.Footnote 69 The relationship between constitutional environmental duties of persons and the state can also be viewed through the lens of enforcement and justiciability (see the next section).

Is there a correlative relationship between the constitutional environmental rights and duties of persons?

Rights and duties are said to be in a correlative relationship; O’Neill asserts that “there can be no rights unless some configuration of counterpart duties that could realise or secure them is possible”.Footnote 70 Along similar lines, the Dakar Draft of the African Charter states: “if individuals have rights to claim, they also have duties to perform. In traditional African societies, there is no opposition between rights and duties or between the individual and the community. They blend harmoniously.”Footnote 71 The textual analysis of environmental provisions in African constitutions offers some supporting evidence for relationality between the constitutional environmental rights and duties of African persons. For instance, the Constitution of Uganda includes a right to a clean and healthy environment as well as a duty to create such an environment.Footnote 72 Similarly, the duty to defend the environment always accompanies the constitutional right to environment.Footnote 73 More broadly, the Constitution of Uganda explicitly links constitutional rights and duties, and states that the rights shall be “respected, upheld and promoted” by “all organs and agencies of Government and by all persons”.Footnote 74 In other words, the CED of all persons to respect, uphold and promote rights correspond to the constitutional right to environment.

In some African constitutions, the environmental provisions start by recognizing the right to an [adjective] environment and then set out the duty of persons to “[verb] it”.Footnote 75 Here, the term “it” appears to refer to the right to environment specifically. In contrast, the Constitution of Kenya does not include the right and the duty in the same provision (or even the same chapter), but envisages a link between the two: Article 42 guarantees the right to a clean and healthy environment, which “includes the right to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69”. Article 69, in turn, includes every person’s “duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources”.

At the same time, the existence of a correlative or perfectly mutual relationship between constitutional environmental rights and the CED of persons cannot be assumed. This has implications for the identification of the corresponding rights holder or duty bearer, as well as the scope of the right and the duty. Several African constitutions guarantee an explicit right to the environment as well as the CED of persons, but the nature and scope of the right and the duty are different.Footnote 76 For example, the Constitution of Burkina Faso recognizes the right to a healthy environment but then sets out a duty to defend and promote the environment generally, rather than a duty to defend and promote the right to a healthy environment.Footnote 77 Nevertheless, the performance of the latter duty could give effect to the right.Footnote 78 For instance, CED to defend the environment can be performed by bringing cases of violations of the right to a healthy environment to the attention of courts.

The different trajectories of environmental rights and duties are also evident in the constitutions of several African countries where the right is articulated in a singular form but there are multiple CED of persons. For instance, the constitutions of Cabo Verde, Comoros and Mozambique link the right to environment with the CED of persons but set out additional CED of persons as well. Further, Table 1 shows that rights holders and duty bearers may be described in the same manner, for example, using the terms mentioned in rows 1–5. Constitutions may also describe them in different ways, for example using the terms mentioned in rows 6–11. As a result, while there may be a correlation between the right and the duty, different persons may be rights holders and duty bearers.

A final point is that a correlative relationship between constitutional environmental rights and duties cannot always be inferred from a general constitutional provision about the inseparability of rights and duties. For instance, the constitutions of Eswatini, Gambia and Ghana do not guarantee a right to environment, but they include the CED of persons in a provision that starts by recognizing the inseparability of rights and duties. In contrast, there is no reference to the inseparability of rights and duties in 25 African constitutions that include a right to environment as well as the CED of persons.

Who are the corresponding human and non-human environmental rights holders?

It may be possible to identify rights holders corresponding to duty bearers where the correlative relationship between rights and duties is established. However, as discussed above, it is not always possible to locate the corresponding rights holders to whom the CED of persons are owed. The duties may be owed to the state, to other persons and to the community or society.Footnote 79 This can be viewed as an application of the principle of intra-generational justice, which is related to fairness among the present generation.Footnote 80 This principle captures the CED of persons towards others within the same temporal dimension and within a justice framework that can take into account the different characteristics of those persons.

The CED of persons could also contribute to the development and operationalization of the principle of intergenerational justice. The basis of this principle is that the present generation of human beings are entitled to use and benefit from the natural environment while holding it in trust for future generations.Footnote 81 It envisages the possibility of a right to environment of future generations and the corresponding duties of present generations.Footnote 82 Whether future generations can have human rights forms the subject of debate.Footnote 83 Yet several African constitutions recognize the rights, interests or benefit of future generations and impose a constitutional environmental duty on the state, expressly or by implication.Footnote 84 Moreover, some constitutions expressly incorporate the CED of persons to promote environmental protection (Eswatini), to preserve the natural resources and the environment and to work for sustainable development (Senegal) and to protect the environment (South Sudan) for the present and future generations. The source of such CED to future generations could be traced to two related African notions: “that the environment is a communal resource, shared across generations, and that the present generation should express gratitude to its predecessors for preserving the environment on its behalf, by emulating its predecessors and preserving the environment for future generations”.Footnote 85 At the same time, these constitutions remain silent in respect of the tension between the CED owed to present and future generations or the principles of intra- and intergenerational justice and the transboundary dimension of these duties, which restricts the geographical scope of the universal notion of environmental citizenship.

The focus on a “generation” in the principles of intra- and intergenerational justice represents the collective dimension of the CED of persons. This differs from the overwhelming focus on the rights of individuals in international human rights law and constitutional law scholarship. These two principles also highlight the horizontal as well as vertical operation of the CED of persons. According to Knox, correlative (horizontal) duties are private duties to respect the human rights of others (individuals, community, society), and converse (vertical) duties are duties owed by individuals or citizens and enforced by the state on behalf of others or society.Footnote 86 However, the CED of African persons remain largely anthropocentric insofar as the corresponding rights holders are present or future generations of human beings. An exception is the Constitution of Burundi, where the people (arguably a reference to the present generation) owe responsibilities and duties to the past and future generations.Footnote 87

Legal scholarship on the principles of intra- and intergenerational justice has largely focused on generations of human beings. However, the past decade has witnessed a slow but steady reorientation of environmental law to accommodate an anthropocentric ontology (the right to environment) with an ecological one (the right of the environment), with human beings as the duty bearers.Footnote 88 In African philosophy, the concepts of ubuntu (“a person is a person through other persons” in Southern Africa) and omolúwàbí (“an ideal person” in the Yoruba culture of Nigeria), for example, capture the harmonious relationship among African persons as well as between them and the natural environment.Footnote 89 Domestic laws in some African countries are beginning to recognize the rights of the environment or its components and corresponding duties. Benin enacted a law in 2012 that recognizes sacred forests and sites where gods, spirits and ancestors reside, and that communities protect and govern sacred forests and have a responsibility for implementing forest management plans.Footnote 90 Uganda explicitly guarantees the rights of nature in its National Environment Act 2019.

The CED of African persons offer another avenue for the recognition of rights of nature, albeit implicitly. Some African constitutions set out the CED of persons relating to a balanced environment (Egypt and Mozambique), an ecologically balanced environment (Cabo Verde) and ecologically sustainable development (Kenya and Zambia). Although those constitutions do not explain the meaning of terms such as “balanced” or “ecological”, evidence from other jurisdictions points towards greater consideration of the intrinsic value of ecology or the natural environment.Footnote 91 This is different from the mainstream concept of sustainable development, which seeks to balance environmental protection with economic and social development, and focuses on the instrumental value of the environment for human beings. Such an interpretation of the above-mentioned constitutional provisions could lead to acknowledgment of the interdependence of human beings on elements of nature and the rights of nature that merit recognition and protection. In addition, the constitutions of several African countries guarantee the right to a healthy environment and set out corresponding CED of persons.Footnote 92 In the context of multiple planetary crises, a broad understanding of a healthy environment that encompasses planetary health is imperative.Footnote 93 The CED of persons could thus offer an opportunity for a greater engagement with the “more-than-human” perspective that focuses on the intrinsic value of the natural environment, in contrast to the inherently anthropocentric constitutional environmental right, which is often restricted to the environment’s instrumental value. Of course, the rights of present and future generations of human beings as well as of the environment and the corresponding CED may face issues of enforcement and justiciability.Footnote 94 The next section discusses these issues.

The enforcement and justiciability of the CED of African persons

The legal significance of the constitutional duties of persons depends on whether they impose a binding obligation, and constitutional provisions exist to address their non-performance. The strength of these duties – binding and obligatory or not – can determine the consequences of non-compliance. Weis discusses whether constitutional duties should be regarded as non-obligatory or obligatory; as non-obligatory provisions, they are a declaration that “certain moral or political obligations have fundamental status”.Footnote 95 Put differently, they appear to be “symbolic, hortatory, and educational”, or they are “plausibly described as ‘symbolic’ or ‘aspirational’”.Footnote 96 Weis contrasts this with the use of the imperative “shall” to convey the obligatory character of the constitutional duties of a state.Footnote 97

A perusal of African constitutions reveals a third possibility: the obligatory imperative “shall” accompanies the CED of persons in some countries.Footnote 98 Writing about environmental constitutionalism in Africa, Bruch, Coker and VanArsdale have observed that “the use of certain declaratory words, such as ‘shall’, indicates the binding and enforceable nature of the rights and duties”, with the latter including duties of the state and of persons.Footnote 99 However, the use of “shall” by itself may not suffice. Other constitutional provisions may shed light on the nature, scope and content of these duties and the consequences of non-performance, or one may need to resort to the judiciary for the interpretation of constitutional provisions. The use of the term “responsibilities” instead of “duties”, as in the case of Zambia, suggests a softer, non-binding obligation in common parlance.Footnote 100 But the Constitution of Zambia goes on to use the terms “shall” and “shall endeavour” to describe different types of responsibilities, with the maintenance of a clean and healthy environment falling under the former, which is more than a duty of endeavour. Other constitutions state that it “is” a duty or that individuals (or everyone) “have” a duty, without using the obligatory imperative “shall”, but this does not mean that the CED are not mandatory.Footnote 101 According to the Constitution of Niger, “[e]ach one is required to contribute to the safeguarding and to the improvement of the environment in which he lives”.Footnote 102 The term “required to” suggests that the duty is mandatory, but the use of “contribute to” indicates that the scope of the contribution of different duty bearers may vary.

Judicial enforcement or justiciability describes whether the consequences of the non-enjoyment (of rights) or non-performance (of duties) are capable of being settled by law or a court. Constitutional environmental rights tend to be capable of direct judicial enforcement, but the constitutional environmental duties of the state have been found to be contrajudicative.Footnote 103 This means that the latter are generally either non-justiciable or else not judicially enforceable, and they require implementation by non-judicial means, which are predominantly directed legislation.Footnote 104 What about the CED of persons? There is a belief that it is more difficult or problematic to enforce duties of persons.Footnote 105 However, Bruch et al observe that the CED of persons create the theoretical possibility that citizens and groups could be held liable for non-performance.Footnote 106

Most African constitutions are silent in respect of the justiciability of the CED of persons. The Constitution of Gambia expressly states that they are non-justiciable: the CED of every citizen do not, “of themselves, render any person liable to proceedings of any kind in any court”.Footnote 107 However, the term “of themselves” does not rule out the possibility that liability may be imposed where it is envisaged by other legal provisions. A few African constitutions provide for implementation of the CED of persons by non-judicial means or directed legislation. According to the Constitution of Uganda, Parliament may prescribe a penalty for contravention of certain duties or obligations, including the CED of every citizen to create and protect a clean and healthy environment.Footnote 108 The Constitution of Cabo Verde, which includes the CED of persons, provides that “[a]ll public authorities have the duty to respect and guarantee … the accomplishment of constitutional or legal duties”, and that “[c]onstitutional norms regarding rights, liberties, and guarantees shall bind all public and private entities and shall be directly enforced”.Footnote 109 Here, accomplishment of the CED of persons may refer to performance or enforcement through appropriate measures, including legislation. According to the Constitution of Rwanda, law determines the modalities for protecting, conserving and promoting the environment, which are identified as the CED of persons.Footnote 110 Similarly, the Constitution of Algeria includes an implicit reference to the CED of persons in the preamble, but a substantive provision states that the law shall determine the obligations of persons in respect of environmental protection.Footnote 111

An enquiry into the design or arrangement in constitutions of the environmental duties of the state and of persons could shed light on their relationship with each other and with constitutional environmental rights. This could clarify the extent to which constitution drafters envisaged enforcement of the CED of persons. Many African constitutions include the CED of persons and the environmental duties of the state in the same chapter, or even in the same provision.Footnote 112 Therefore one could rely on discussions of the justiciability of the state’s constitutional environmental duties, variously described as Directive Principles of State Policy, Fundamental Principles or National Policy Principles and Objectives, to shed light on the status of the CED of persons, where available.Footnote 113 However, constitutional design might be a function of expediency or convenience. For example, some constitutions include environmental rights and the CED of persons in the same provision, but only make the former justiciable.Footnote 114 A contextual analysis of environmental provisions in specific African constitutions is required to ascertain the drafters’ intent. In other words, any examination of the enforcement or justiciability of the CED of African persons must be carried out with caution and care, taking into account their rights and lived experience as well as the constitutional environmental duties of the state.

Conclusion and way forward

This article provides empirical evidence for the pervasiveness of the CED of persons and examines their contribution to environmental constitutionalism based on a systematic analysis of environmental provisions in the constitutions of 54 African countries. It offers an account of a specific category of the constitutional duties of persons from a non-Western perspective and unsettles the dominant “rights of individuals and duties of the state” framing in legal scholarship. By highlighting the functional elements of the CED of persons, I have challenged their characterization as merely “symbolic” or “aspirational”. At the same time, concerns about the misuse of persons’ duties cannot be dismissed; they are a constant reminder to law- and policy-makers, implementers and interpreters as well as to members of the public and others who monitor government actions and inaction to ensure that a proper balance is maintained between rights and duties, the duties of the state and of persons, and the duties of persons with different characteristics. These findings have broader implications for constitutional, environmental and human rights law.

First, external and internal factors have influenced the origin of the CED of persons in African countries. Legal developments at the international level and in other jurisdictions have also had a bearing on the manner in which constitutions describe the environmental duties of persons. At the regional and domestic levels, the African communitarian approach provides a strong justification for the inclusion of the language of duties towards other human beings as well as the environment. The African Charter includes an explicit right to the environment and several duties of individuals and peoples, and it has influenced the development of environmental rights within African countries. However, it has not exerted a similar influence on the development of the CED of persons; instead, there is horizontal diffusion of this concept between African countries. A granular and contextual analysis of the CED of persons in specific African countries could shed light on the nature, scope and content of the CED of persons and explain why some constitutions provide for their justiciability and others do not.

Second, the CED in African constitutions are usually attributed to natural persons (individuals or communities), but they may extend to artificial persons (corporations or non-governmental organizations) in some cases. Democratic citizenship as expressed in constitutions can mirror the universal notion of environmental citizenship to some extent. At the same time, some constitutions do not distinguish between different natural persons as duty bearers based on their citizenship, gender, income, land ownership, etc, between natural and artificial persons or between corporations and environmental organizations as artificial persons. This raises the concern of an unequal division of the benefits and burdens of environmental protection in the absence of a clear and consistent approach towards the identification of duty bearers and holding them accountable. Before requiring a poor or landless person or a resource-constrained environmental protection association to perform their environmental duties while their rights remain unprotected, other constitutional duty bearers, such as the state and persons who enjoy stronger rights protections, such as corporations, the rich, etc, should be held accountable. Further research is required to address this issue in the context of specific African countries.

Third, there is a link between the CED of persons and the constitutional environmental duties of the state. The rationale for seeking constitutional recognition of rights includes the importance of the interests at stake, which may require protection against the legislature and special treatment by the judiciary.Footnote 115 The performance of CED by persons depends on the existence of an enabling substantive and procedural environment in the form of legislative and other measures introduced by the legislature and the executive, and the interpretation of legislation by the judiciary to protect the interest at stake (that is, the environment).

Fourth, there is a dynamic relationship between the CED of persons and the constitutional environmental right. Certain CED of persons are in a correlative relationship with the constitutional right to environment where both are formulated in specific terms. However, such a relationship cannot be assumed. Yet the CED of persons can enable the enjoyment of the right to the environment broadly and redress its violations, for instance where the CED to defend the environment are performed by approaching courts, rather than undermining the human rights project.Footnote 116 In some cases, the absence of a correlative relationship between constitutional environmental rights and the CED of persons provides an opportunity for the latter to achieve environmental protection as an end in itself, that is, a different correlative relationship with the environment as a rights holder. In this manner, as well as through a constitutional duty in respect of an ecological and / or balanced environment, the CED of persons could respect, protect and fulfil the rights of nature. Finally, the CED owed to other human beings in the present and future generations operationalize the principles of intra- and intergenerational justice; the former offers a constitutional lever to take into account the characteristics of different rights holders and duty bearers, an issue raised in this article. The latter is an important contribution to the growing concern about the environmental rights of future generations.

This article also confirms that an enquiry into the environmental duties of persons within domestic legal frameworks must extend beyond national constitutions. For instance, in one case the Supreme Court of Kenya interpreted the CED to cooperate with state organs as (a) representing the collective dimension of the right to the environment, and (b) clarifying that the constitutional environmental duty of the state is owed by “all” state organs.Footnote 117 At the same time, it is important to note that, as in the case of the relationship between international and national law, the inclusion of environmental provisions in national constitutions does not always precede their adoption as part of domestic environmental laws and policies. The domestic environmental laws of some African countries have recognized a right to environment and imposed corresponding environmental duties on persons before the incorporation of similar environmental provisions into their national constitutions.Footnote 118 Those laws include provisions on compliance and non-compliance with duties. An exploration of the link between the constitutional and statutory environmental duties of persons could provide valuable insights into the legal dimensions of the environmental duties of persons, besides addressing some of the ethical dimensions highlighted here.Footnote 119

Competing interests

None

APPENDIX

Explicit substantive environmental rights and duties in African constitutions

Across 54 African countries, most constitutions mark Yes for Right(s) and for state duties, while fewer mark Yes for Duty or Duties of persons. See long description.

Footnotes

*

BA, LLB (NLSIU, India), MSc (LSE, UK), LLM, PhD (SOAS, UK). Assistant Professor in Environmental Law, Department of Land Economy, University of Cambridge. This work was supported by a British Academy / Leverhulme Small Research Grant (2021–22).

References

1 See LJ Kotzé “The conceptual contours of environmental constitutionalism” (2015) 21/2 Widener Law Review 187.

2 JR May and E Daly Global Environmental Constitutionalism (2014, Cambridge University Press) at 73, 76 and appendices A, B and C.

3 S Gardbaum “The ‘horizontal effect’ of constitutional rights” (2003) 102/2 Michigan Law Review 387. See also LJ Kotzé “Arguing global environmental constitutionalism” (2012) 1/1 Transnational Environmental Law 199 at 206–207.

4 See H Breakey “Positive duties and human rights: Challenges, opportunities and conceptual necessities” (2015) 63 Political Studies 1198; FB Del Valle and K Sikkink “(Re)discovering duties: Individual responsibilities in the age of rights” (2017) 26/1 Minnesota Journal of International Law 189 at 195 and 236; JH Knox “Horizontal human rights law” (2008) 102/1 American Journal of International Law 1 at 2.

5 This article uses the term “persons” instead of “individuals” to distinguish constitutional provisions, which may apply to a multiplicity of legal persons (natural or artificial), from the provisions of human rights law, which are primarily concerned with individual natural persons or sometimes communities of natural persons.

6 LK Weis “Environmental constitutionalism: Aspiration or transformation” (2018) 16/3 International Journal of Constitutional Law 836 at 844. Also see C Bruch, W Coker and C VanArsdale “Constitutional environmental law: Giving force to fundamental principles in Africa” (2001) 26/1 Columbia Journal of Environmental Law 131 at 156; M Addaney and AO Jegede (eds) Human Rights and the Environment under African Union Law (2020, Springer).

7 See Universal Declaration of Human Rights, UN doc A/810 (1948) at 71, art 29; International Covenant on Economic, Social and Cultural Rights, UN doc A/6316 (1966), preamble; International Covenant on Civil and Political Rights, UN doc A/6316 (1966), preamble. See also American Declaration on the Rights and Duties of Man, 2 May 1948, OAS Res XXX, E/CN.4/122 (1948); African (Banjul) Charter on Human and Peoples’ Rights, 27 June 1981, OAU doc CAB/LEG/67/3 Rev. 5, 1520 UNTS 217, 21 ILM 58 (1982) (African Charter).

8 See M Mutua Human Rights: A Political and Cultural Critique (2002, University of Pennsylvania Press); M Maxwel “African approaches to international law: A communitarian ethic as a cultural critique of the Western understanding of the human rights corpus” in F Viljoen, H Sipalla and F Adegalu (eds) Exploring African Approaches to International Law: Essays in Honour of Kéba Mbaye (2022, Pretoria University Law Press) 145.

9 See MW Mutua “The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties” (1995) 35/2 Virginia Journal of International Law 339; A Devereux “Should ‘duties’ play a larger role in human rights? A critique of Western liberal and African human rights jurisprudence” (1995) 18/2 UNSW Law Journal 464.

10 R Gittleman “The Banjul Charter on Human and Peoples’ Rights: A legal analysis” in CE Welch Jr and RI Meltzer (eds) Human Rights and Development in Africa (1984, State University of New York Press) 152 at 154. See also BE Winks “A covenant of compassion: African humanism and the rights of solidarity in the African Charter on Human and Peoples’ Rights” (2011) 11/1 African Human Rights Law Journal 447.

11 DM Chirwa and L Chenwi “The protection of economic, social and cultural rights in Africa” in DM Chirwa and L Chenwi (eds) The Protection of Economic, Social and Cultural Rights in Africa: International, Regional and National Perspectives (2016, Cambridge University Press) 3 at 8–10.

12 C Heyns “Where is the voice of Africa in our constitution?” (Centre for Human Rights paper 8, University of Pretoria, 1996) at 2.

13 F Ouguergouz The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (2003, Brill Nijhoff) at 392.

14 Exceptions that discuss the duties of persons in African constitutions generally include PJ Kabudi “The Directive Principles of State Policy versus duties of the individual in East African constitutions” (1995) 28/3 Law and Politics in Africa, Asia and Latin America 272; DM Chirwa and C Mbazira “Constitutional rights, horizontality, and the Ugandan constitution: An example of emerging norms and practices in Africa” (2020) 18/4 International Journal of Constitutional Law 1231; BA Gebeye A Theory of African Constitutionalism (2021, Oxford University Press) at 102–104; and on environmental duties specifically, Bruch, Coker and VanArsdale “Constitutional environmental law”, above at note 6 at 158–59. See also M Faure and W du Plessis (eds) The Balancing of Interests in Environmental Law in Africa (2011, Pretoria University Law Press); T Murombo “The utility of environmental rights to sustainable development in Zimbabwe: A contribution to the constitutional reform agenda” (2011) 11/1 African Human Rights Law Journal 120.

15 See for example Addaney and Jegede (eds) Human Rights and the Environment, above at note 6; EP Amechi “Enhancing environmental protection and socio-economic development in Africa: A fresh look at the right to a general satisfactory environment under the African Charter on Human and Peoples’ Rights” (2009) 5/1 Law Environment and Development Journal 58; DR Boyd The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (2012, UBC Press) at 149. See also Faure and du Plessis (eds) Balancing of Interests, id; JN Ashukem and SM Sama (eds) Human Rights and the Environment in Africa: A Research Companion (2024, Routledge).

16 GEK Dzah “Theorising the right to environment: An Africological typology” (2019) 27/1 African Journal of International & Comparative Law 25.

17 See for example K Bouwer “The influence of human rights on climate litigation in Africa” (2022) 13/1 Journal of Human Rights and the Environment 157; N Ghaleigh, J Setzer and A Welikala “The complexities of comparative climate constitutionalism” (2022) 34/3 Journal of Environmental Law 517.

18 See for example the constitutions of Burkina Faso and the Democratic Republic of Congo (the right to energy), Egypt, Namibia, South Sudan, Uganda and Zambia (the duties or responsibilities of the state in respect to energy), Kenya and Mozambique (energy as a resource of the state) and Algeria, Cote d’Ivoire, Tunisia and Zambia (climate change).

19 World Bank Poverty, Prosperity, and Planet Report 2024: Pathways out of the Polycrisis (2024, World Bank) at 59.

20 UNEP Africa: Atlas of Our Changing Environment (2008, UNEP).

21 DR Thomas “A general inductive approach for analysing qualitative evaluation data” (2006) 27/2 American Journal of Evaluation 237.

22 DF Polit and CT Beck “Generalization in quantitative and qualitative research: Myths and strategies” (2010) 47/11 International Journal of Nursing Studies 1451.

23 The Constitution of Zambia 1991 uses the term “responsibilities” instead of “duties”. The 30 constitutions that refer to the environmental duties of persons include the Constitution of Eritrea (not implemented) and the temporary constitutions of Niger, South Sudan and Sudan. The preambles of the constitutions of Cameroon (1972) and Algeria (2020) set out, respectively, the explicit and implicit CED of every person and of the Algerian people. On rights to the environment, see C Heyns and W Kaguongo “Constitutional human rights law in Africa” (2006) 22 South African Journal of Human Rights 673 at 706–708.

24 D Shelton “Human rights, environmental rights, and the right to environment” (1991) 28/1 Stanford Journal of International Law 103 at 134–35.

25 See M Thorme “Establishing environment as a human right” (1990) 19/2 Denver Journal of International Law & Policy 301 at 309.

26 See for example the constitutions of Sudan (biodiversity), and of Comoros, Senegal, Somalia, South Sudan and Zambia (natural resources). See also Bruch, Coker and VanArsdale “Constitutional environmental law”, above at note 6 at 145–46.

27 Gebeye A Theory of African Constitutionalism, above at note 14 at 80.

28 See JC Gellers The Global Emergence of Constitutional Environmental Rights (2017, Routledge).

29 Declaration of the United Nations Conference on the Human Environment, Report of the United Nations Conference on the Human Environment (Stockholm, 5–16 June 1972), UN doc A/CONF.48.14.Rev1/Corr1 (15 December 1972).

30 Id, para 6.

31 See the constitutions of Algeria, Burkina Faso, Chad, Comoros, Cote d’Ivoire, Egypt, Eswatini, Ethiopia, Gambia, Ghana, Kenya, Mali, Mozambique, Rwanda, Seychelles, Somalia, South Sudan, Tanzania, Uganda and Zambia.

32 See the constitutions of Angola, Benin, Burkina Faso, Cabo Verde, Congo, Democratic Republic of Congo, Guinea, Mozambique and São Tomé and Príncipe.

33 Niger Constitution 2010, art 35.

34 See for example Boyd Environmental Rights Revolution, above at note 15 at 33; Thorme “Establishing environment as a human right”, above at note 25; LE Rodriguez-Rivera “Is the human right to environment recognised under international law? It depends on the source” (2001) 12/1 Colorado Journal of International Environmental Law & Policy 1.

35 Mutua “The Banjul Charter”, above at note 9 at 373.

36 African Charter on Human and Peoples’ Rights, OAU doc CAB/LEG/67/3/Rev.1 (1979) (draft prepared by a Meeting of Experts of the Organisation of African Unity, Dakar, Senegal, 23 November–8 December 1979) (Dakar Draft), in C Heyns (ed) Human Rights Law in Africa 1999 (vol 4, 2002, Martinus Nijhoff Publishers) 81.

37 Id.

38 R Murray The African Charter on Human and Peoples’ Rights (2019, Oxford University Press) at 577.

39 African Charter, above at note 7, arts 27–29.

40 Mutua “The Banjul Charter”, above at note 9 at 364.

41 Id at 359. See also Murray The African Charter, above at note 38 at 577.

42 Id at 579.

43 African Charter, above at note 7, art 24; Bruch, Coker and VanArsdale “Constitutional environmental law”, above at note 6 at 145 and 209, Table 2.

44 See generally Del Valle and Sikkink “(Re)discovering duties”, above at note 4 at 234.

45 Kenya Constitution 2010, art 69(2); Zambia Constitution 1991, art 256; Cabo Verde Constitution 1980 (revised 1992), art 70(2).

46 A Dobson “Environmental citizenship: Towards sustainable development” (2007) 15/5 Sustainable Development 276.

47 E Barritt “Conceptualising stewardship in environmental law” (2014) 26/1 Journal of Environmental Law 1.

48 B Orlove et al “Environmental citizenship in Latin America: Climate, intermediate organizations, and political subjects” (2011) 46/S1 Latin American Research Review 115 at 117.

49 A Dobson Citizenship and the Environment (2003, Oxford University Press) at 39.

50 See for example Knox “Horizontal human rights law”, above at note 4.

51 May and Daly Global Environmental Constitutionalism, above at note 2, Appendix B.

52 See the constitutions of Eswatini, Mozambique, South Sudan and Zambia.

53 See generally EE Osaghae “Ethnicity and contested citizenship in Africa” in E Hunter (ed) Citizenship, Belonging, and Political Community in Africa: Dialogues between Past and Present (2016, Ohio University Press).

54 OA Oyowe and O Yurkivska “Can a communitarian concept of African personhood be both relational and gender-neutral?” (2014) 33/1 South African Journal of Philosophy 85.

55 See Cote d’Ivoire Constitution 2016, art 40 (which mentions the community and natural and legal persons); Kenya Constitution 2010, art 260 (where a “person” includes a company, association or other body of persons, whether incorporated or unincorporated); Zambia Constitution 1991, art 266 (where a “person” means an individual, a company or an association of persons, whether corporate or unincorporate).

56 On the demand to hold corporations accountable, see S Deva “Business and human rights: Alternative approaches to transnational regulation” (2021) 17 Annual Review of Law & Social Science 139. See also RM Mwanza “Harnessing the transformative potential of the constitutional human right to a clean and healthy environment in the context of corporate environmental damage in Kenya: A critical perspective” (2010) 10/2 Journal of Human Rights and the Environment 215.

57 See A Scheidel et al “Environmental conflicts and defenders: A global overview” (2020) 63 Global Environmental Change 102104, available at: <https://doi.org/10.1016/j.gloenvcha/2020.102104>.

58 Id.

59 See J Gilbert “The rights of nature, indigenous peoples and international human rights law: From dichotomies and synergies” (2022) 13/2 Journal of Human Rights and the Environment 399.

60 See generally D Olawuyi and O Abe (eds) Business and Human Rights Law and Practice in Africa (2022, Edward Elgar).

61 P Alston and R Goodman International Human Rights. The Successor to International Human Rights in Context: Law, Politics and Morals (2013, Oxford University Press) at 181.

62 The right to food as a human right, 7 July 1987, UN doc E/CN.4/Sub.2/1987/23.

63 See MM Sepulveda The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (2003, Intersentia).

64 See for example Ghana Constitution 1992, art 25(1); Kenya Constitution 2010, art 21(2).

65 See generally P Bond Looting Africa: The Economics of Exploitation (2006, Zed Books).

66 See for example A Mwenda and TN Kibutu “Implications of the new constitution on environmental management in Kenya” (2012) 8/1 Law Environment and Development Journal 76 at 84 (describing the CED to cooperate as an “expectation of support, in the execution of these activities, from its citizens”).

67 Zambia Constitution 1991, art 255(m).

68 Id, arts 255(l) and 257(d).

69 Uganda Constitution 1995, art 50(1).

70 O O’Neill “Response to John Tasioulas” in R Cruft, SM Liao and M Renzo (eds) Philosophical Foundations of Human Rights (2015, Oxford University Press) 71 at 73.

71 Dakar Draft, cited in Heyns (ed), Human Rights Law in Africa, above at note 36 at 82. See also M Molefe “Personhood and rights in an African tradition” (2017) 45/2 Politikon: South African Journal of Political Studies 217.

72 Uganda Constitution 1995, arts 39 and 17(1)(j) respectively.

73 See the constitutions of Angola, Benin, Burkina Faso, Cabo Verde, Congo, Democratic Republic of Congo, Guinea, Mozambique and São Tomé and Príncipe.

74 Uganda Constitution 1995, art 20(2).

75 See the constitutions of Angola, Benin, Cabo Verde, Comoros, Congo, Democratic Republic of Congo, Egypt, Guinea, Mozambique and São Tomé and Príncipe.

76 See the constitutions of Burkina Faso, Chad, Cote d’Ivoire, Ethiopia, Mali, Niger, Rwanda, Senegal, Seychelles, Somalia and South Sudan.

77 Burkina Faso Constitution 1991, art 29.

78 See generally KB Kennedy “The environmental law framework of the Democratic Republic of the Congo and the balancing of interests” in Faure and du Plessis (eds) Balancing of Interests, above at note 14 at 98.

79 See generally Maxwel “African approaches to international law”, above at note 8 at 154.

80 D Shelton “Equity” in D Bodansky, J Brunnée and E Hey (eds) The Oxford Handbook of International Environmental Law (2007, Oxford University Press) 32 at 53.

81 See EB Weiss In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (1989, UN University).

82 See R Araújo and L Koessler “The rise of the constitutional protection of future generations” (Legal Priorities Project working paper series no 7, 2021). See also Boyd Environmental Rights Revolution, above at note 15 at 289.

83 See B Lewis “Human rights duties towards future generations and the potential for achieving climate justice” (2016) 34/3 Netherlands Quarterly of Human Rights 206.

84 Different constitutions use different terms. See for example Angola, Egypt, Malawi and Mozambique (rights of future generations); Eritrea, Eswatini and Niger (interests of future generations); Kenya, Lesotho, South Africa, South Sudan and Zimbabwe (benefit of future generations); Burundi (for future generations); and Uganda (needs of future generations). The constitutions of Gambia and Ghana use the term “posterity”.

85 KG Behrens “Moral obligations towards future generations in African thought” (2012) 8/2–3 Journal of Global Ethics 179.

86 Knox “Horizontal human rights law”, above at note 4 at 2.

87 Burundi Constitution 2018, preamble.

88 See for example DR Boyd The Rights of Nature: A Legal Revolution That Could Save the World (2019, ECW Press); S Borràs “New transitions from human rights to the environment to the rights of nature” (2016) 5/1 Transnational Environmental Law 113.

89 See K Behrens “African holism with respect to the environment” (2010) 19/4 Environmental Values 465; B Dauda “African humanism and ethics: The cases of ubuntu and omolúwàbí” in A Afolayan and T Falola (eds) The Palgrave Handbook of African Philosophy (2017, Palgrave) 475.

90 See Interministerial Order no 0121, setting the conditions for the sustainable management of sacred forests in the Republic of Benin; available at: <https://www.gaiafoundation.org/wp-content/uploads/2014/07/beninsacredforestlawenglish.pdf> (last accessed 28 January 2026).

91 Eg Mexico’s General Law of Ecological Balance and Environmental Protection, art 3(xiv): “The interdependence relation among the elements constituting the environment, which makes possible the existence, transformation and development of man and other living beings”. See also L Godden “A duty of care and decolonising environmental law: Re-imagining sustainability practices in Australia” (2022) 27 Pandora’s Box 17.

92 See the constitutions of Benin, Cabo Verde, Congo, Democratic Republic of Congo, Egypt, Guinea, Uganda and Zambia.

93 See JJ Bruckerhoff “Giving nature constitutional protection: A less anthropocentric interpretation of environmental rights” (2008) 86/3 Texas Law Review 615 at 616.

94 Lewis “Human rights duties towards future generations”, above at note 83.

95 Weis “Environmental constitutionalism”, above at note 6 at 845.

96 Boyd Environmental Rights Revolution, above at note 15 at 68; Weis “Environmental constitutionalism”, above at note 6 at 844.

97 Id at 846.

98 See the constitutions of Cabo Verde, Eswatini, Ethiopia, Gambia, Ghana, Mali, Mozambique, Seychelles and South Sudan.

99 Bruch, Coker and VanArsdale “Constitutional environmental law”, above at note 6 at 146.

100 Zambia Constitution 1991, art 43.

101 See for example Kibugi “Development and the balancing of interests in Kenya” (referring to “mandatory” CED) in Faure and du Plessis (eds) Balancing of Interests, above at note 14 at 173. The constitutions of Burkina Faso, Chad, Cote d’Ivoire and Uganda say “is”, while the constitutions of Angola, Benin, Comoros, Congo, Democratic Republic of Congo, Guinea, Kenya, Rwanda, São Tomé and Príncipe, Senegal and Somalia say “have”.

102 Niger Constitution 2010, art 35.

103 Boyd Environmental Rights Revolution, above at note 15 at 37–38; Weis “Environmental constitutionalism”, above at note 6 at 846.

104 Id at 846–47.

105 Del Valle and Sikkink “(Re)discovering duties”, above at note 4 at 227.

106 Bruch, Coker and VanArsdale “Constitutional environmental law”, above at note 6 at 159.

107 The Gambia Constitution 1996, art 220(2).

108 Uganda Constitution 1995, art 17(3).

109 Cabo Verde Constitution 2010, arts 14(2) and 17 respectively.

110 Rwanda Constitution 2003, art 53(3).

111 Constitution of the Republic of Algeria 2020, art 67. The preamble states that the Algerian people “shall work towards building a productive and competitive economy within the framework of sustainable development and environmental protection. The people remain concerned with environmental degradation and the negative effects of climate change, and they are eager to ensure protection of the natural environment and the rational use of natural resources in order to preserve them for future generations.”

112 They are included in the same chapter in the constitutions of the Democratic Republic of Congo, Egypt, Ethiopia, Gambia, Ghana, Kenya, Rwanda, Seychelles, Somalia and Zambia. They are included in the same provision in the constitutions of Chad, Cote d’Ivoire and Eswatini.

113 See generally LK Weis “Constitutional directive principles” (2017) 37/4 Oxford Journal of Legal Studies 916 at 923–24. See also E Arban and A Dirri “Aspirational principles in African federalism: South Africa, Ethiopia and Nigeria compared” (2021) 29/3 African Journal of International and Comparative Law 362.

114 See for example the constitutions of Algeria, Angola, Benin, Cabo Verde, Comoros, Congo, Guinea, Mali, Mozambique, Niger, Senegal and South Sudan.

115 C Fabre Social Rights under the Constitution (2000, Oxford University Press), chap 3.

116 See also NB Pityana “The challenge of culture for human rights in Africa: The African Charter in a comparative context” in MD Evans and R Murray (eds) The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000 (2002, Cambridge University Press) 219 at 230.

117 Export Processing Zone Authority and 11 Others v National Environment Management Authority and 6 Others [2024] KESC 75 (KLR), paras 90 and 93.

118 See for example Uganda’s National Environment Act 2019, sec 3(2): “Every person has a duty to create, maintain and enhance the environment, including the duty to prevent pollution”; and Kenya’s Environmental Management and Coordination Act 1999, sec 3(1): “Every person in Kenya is entitled to a clean and healthy environment and has the duty to safeguard and enhance the environment.” See also UN General Assembly Recognition of the right to a healthy environment in constitutions, legislation and treaties: Africa region, UN doc A/HRC/43/53/Annex IV (14 February 2020).

119 See also C Bruch, E Roffman and E Kim “Legislative representation and the environment in African constitutions” (2004) 21 Pace Environmental Law Review 119.

Figure 0

Table 1. Environmental duty bearers and rights holders in African constitutionsTable 1 long description.