By Pedi Obani
Across domestic courts in Africa, climate cases have been decided in South Africa, Nigeria and Kenya, with some cases pending in Uganda. However, climate litigation is still fairly new.
Climate lawsuits are an important way to access justice. This is particularly true for African women because, as research has shown, climate change affects women more than men in key areas including farming, health, water, access to electricity, migration and conflict.
I research how the law can be applied to cases of climate change, inclusive development, water governance and sustainability. In a recent paper on climate litigation in Nigeria and South Africa, I argue that the structure of legal institutions must be redesigned so that courts are more receptive to women’s climate change claims.
There are three key interventions that would enhance women’s access to climate justice. Firstly, data needs to be collected on women’s and girl’s experiences of climate change impact. Secondly, there needs to be legal aid for women to take up climate lawsuits. And thirdly, gender sensitive climate laws need to passed and then effectively enforced.
If women are able to bring climate action effectively, it will lead to better protection of their rights. This will make them more resilient to climate change. It will also ensure better accountability of those responsible for climate change at various levels, from countries to corporations.
Climate change and women’s rights
By 2050, an additional 158 million women and girls will experience poverty due to climate change and 236 million women will experience hunger.
Because they lack the resources to bring court cases, women often resort to protests and other informal mechanisms to obtain redress for environmental and other human rights violations, including land grabbing and environmental degradation by governments and companies.
Women’s rights litigation brought by non-governmental organisations on the continent largely focuses on women’s land rights, sexual and reproductive health, and civil and political rights. Climate change affects most of, if not all, these rights but has not yet been directly acknowledged as a cause of action.
In Nigeria, no climate change cases have been brought by women yet though the Climate Change Act 2021 provides for women’s participation in climate governance. In South Africa, women’s rights have been included in climate change policy and women-led non-governmental organisations are driving climate litigation. But this has not yet resulted in a sharp increase in the number of women instituting climate litigation.
The need for climate impact data
Women cannot currently bring court cases against climate-induced harm because they don’t have the evidence or data to prove how climate change is harming them, or whose fault this is. This is not necessarily because the harm is not happening but rather because there is a lack of data being collected on it.
For example, a group of Swiss women over the age of 64 tried to convince the Federal Supreme Court of Switzerland that women were more vulnerable to climate-induced heatwaves than men. They used medical evidence showing that more women of this age died of heatstroke than men. But the court was not convinced that the women had suffered enough damage to bring a climate justice lawsuit. The case is now before the European Court of Human Rights.
This shows that without specific data showing how climate change affects women, African women are a long shot from being able to sue for damage caused by climate change.
Legal aid
Women and women-headed households in Africa often live in poverty. This erodes their resilience and access to livelihood resources. In addition, indigent women cannot afford lawyers and other litigation costs.
The right to legal aid in most African legal systems is restricted. In South Africa, legal aid is mainly available for criminal defence or cases involving detention as in the Legal Aid South Africa Act 39 of 2014 . Nigeria’s Legal Aid Act 2011 provides legal support for criminal cases and civil matters. There is no specific legal aid that would support women in bringing climate change lawsuits.
Non-governmental organisations have been at the forefront of climate change advocacy and public interest litigation in Africa. They are often able to do this because they have external funding. In South Africa, non-governmental organisations have challenged the approval of coal-fired power stations, mines, or failures to conduct climate change impact assessments.
Nigerian women who sued multinational oil and gas companies for human rights violations were also supported by international non-governmental organisations. And the Centre for Oil Pollution Watch v. Nigerian National Petroleum Corporation case, in which the Nigerian Supreme Court upheld the right to institute legal action for environmental protection, was brought by an NGO on behalf of a community. Most women do not have access to the same kind of funding.
Read more: Three secrets to successful climate litigation
Gender sensitive climate laws, and enforcement
Domestic climate change governance systems need to focus on women’s unique climate vulnerabilities. A proactive judiciary could also play a crucial role in interpreting existing human rights safeguards to advance women’s climate justice.
In particular, there needs to be effective enforcement to avoid inaction or non-implementation of court decisions.
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