=======================
Study on the Impact of Climate Change on
Human and Peoples’ Rights in Africa
1|Page
Table of Contents
Executive Summary ........................................................................................................................ 4
I. Introduction ................................................................................................................................. 6
II
Impact of climate change and climate interventions in Africa ................................................ 9
III Relationship of Climate Impacts with Human and Peoples’ Rights in Africa ...................... 16
3.1. How climate change affects human and peoples’ rights .................................................... 16
3.2.
How climate change affects the rights of individuals and peoples and the obligations of
states 17
3.3.
Climate change and specific human and peoples’ rights .............................................. 18
3.3.1. The Right to Life ......................................................................................................... 19
3.3.2.
Right to Receive Information and Express Opinion ............................................. 20
3.3.3
The Right to Association and Assembly ................................................................... 23
3.3.4.
The Right to Food ................................................................................................. 24
3.3.5. Right to Water ............................................................................................................. 27
3.3.6. Right to Health............................................................................................................ 29
3.3.7. Right to Housing......................................................................................................... 33
3.3.8. Right to Education ....................................................................................................... 35
3.3.9. Right to Property ......................................................................................................... 36
3.3.10. Right to Social Security and Protection .................................................................... 38
3.3.11. The right to work ....................................................................................................... 40
3.3.12
Cultural Rights ...................................................................................................... 41
3.3.13. The Right to a Healthy Environment ........................................................................ 42
3.3.14.
The Right to Freely Dispose of Wealth and Natural Resources, and the Right to
Development.......................................................................................................................... 45
3.3.15.
Right to Peace ....................................................................................................... 50
3.3.16. Right to Self-determination ....................................................................................... 52
3.4 Impact of climate change on vulnerable groups.................................................................. 53
3.4.1 Women and girls ........................................................................................................... 53
3.4.2 Children ........................................................................................................................ 56
3.4.3 Persons in prison........................................................................................................... 57
3.4.5 Displaced Persons, migrants and refugees ................................................................... 60
3.4.6.
2|Page
Persons with disabilities........................................................................................ 62
3.4.7
Older Persons ............................................................................................................ 63
3.4.8.
The poor ................................................................................................................ 64
3.4.9.
Persons living with and affected by HIV and AIDS ............................................. 65
3.4.10.
Coastal and Peasant People ................................................................................... 67
3.4.11.
Future Generations ................................................................................................ 68
3.4.12.
Climate and Environment Defenders .................................................................... 69
IV.
States' obligations in the climate change context.............................................................. 70
4.1.
Sources of authority of state obligations....................................................................... 71
4.2.
Procedural and substantive obligations of states .......................................................... 72
4.2.1.
General obligations and obligations arising from Article 24 of the African Charter
73
4.2.2.
Procedural Obligations.......................................................................................... 75
4.2.3. Substantive obligations ................................................................................................ 78
4.2.3.1. Duty to respect .......................................................................................................... 78
4.2.3.2. Duty to protect .......................................................................................................... 80
4.2.3.3 Duty to promote ......................................................................................................... 83
4.2.3.4
Duty to fulfil ......................................................................................................... 84
4.2.3.5 Obligation of major GHG-emitting states and for international cooperation and
extraterritoriality .................................................................................................................... 85
4.2.3.6 Obligations of businesses .......................................................................................... 86
V The Role of the African Commission ..................................................................................... 90
5.1.
Promotional Functions .................................................................................................. 91
5.2.
Protective Mandates ...................................................................................................... 93
5.3
Collaboration with AU Operational Structures and other Platforms ............................ 94
VI Conclusion and Recommendations.......................................................................................... 95
6.1 Conclusion ........................................................................................................................... 95
6.2. Recommendations .............................................................................................................. 97
3|Page
Executive Summary
Africa contributes relatively little global greenhouse gas emissions and yet faces some of the most
severe climate risks, including draughts, heat waves, sea-level rise and water stress. The study
finds that climate change is already undermining a wide range of rights protected under the African
Charter and these harms fall most heavily on poor and marginalized communities, including
Indigenous Peoples and minorities, those who depend on farming, pastoralism and fishing, women,
children, older persons, persons with disabilities, migrants and displaced people.
The report frames climate change is a human and peoples’ rights issue, not only as environmental
and developmental issue. It identifies two channels of human and peoples’ rights harm: the damage
climate change causes to the natural systems needed for human wellbeing and the direct and
indirect harm from slow onset and sudden-onset climate events. It also warns that climate
responses such as REDD+, carbon taxes, BECCS and some climate-finance interventions can
create new rights risks if they are not designed and implemented with safeguards. climate change
has a direct and indirect bearing on the delivery by states of their obligations to respect, protect
(including through remedying breaches of rights), promote and fulfil these rights
Having regard to the burden of responsibility for climate change and its impact, the study
established that the legal responsibility that states parties to the African Charter bear for human
and peoples’ rights harm arising from climate change is short of the major responsibility that those
states that contributed the most to Greenhouse Gass (GHG) emission bear for the human and
peoples’ rights impacts of climate change. Thus, state parties have legal duties under the African
Charter to prevent, prepare for, respond to and remedy climate related harms, including through
due diligence to prevent significant environmental harm for present and future generations. The
study also finds that both substantive and procedural obligations apply, meaning governments must
protect rights from climate induced harm while ensuring participation, information, accountability
and access to justice in climate decision making. It also identifies the obligation of international
cooperation and extraterritoriality and the obligation that businesses bear in relation to the climate
induced human and peoples’ rights harm.
The African Commission is positioned to advance this agenda through reporting, standard-setting,
protective mandates and collaboration with the wider AU institutions.
Key priority actions for states are the following:
Put human rights at the centre of all climate mitigation, adaptation and energy policies,
with explicit attention to Article 24 and related Chater rights;
Ensure meaningful participation and free, prior and informed consent for groups in
vulnerable situations in climate planning, finance and implementation;
Invest in renewable energy, social protection, disaster preparedness, public health and
climate resilient livelihoods through a just transition approach;
Remove barriers to climate accountability by protecting environmental defenders,
widening access to courts and creating domestic mechanisms to remedy climate harms;
4|Page
Align climate finance, carbon markets and carbon credit systems with human rights
standards so they do not drive displacement, exclusion or exploitation;
Strengthen labour protections, address climate related displacement, and create institutions
that represent the interests of future generations in public decision-making.
These key actions have important institutional implications. The African Commission should
mainstream climate change across its mandates, develop guidance on state obligations, deepen
engagement with AU and UNFCC institutions, and consider a new protocol on sustainable
development and safe climate. National human rights commissions should scrutinize climate laws,
budgets and policies, investigate climate related rights violations and expand public education on
climate justice.
5|Page
I. Introduction
1.
Africa is one of the parts of the world that is bearing the brunt of climate change despite
the fact that it is the part of the world that contributed the least to climate change.1
Human-based or anthropogenic emissions of greenhouse gases (GHGs) lead to global
warming– an increase in global surface temperature and climatic change.2 According
to the Intergovernmental Panel on Climate Change (IPCC) Assessment Review 4, the
six main areas of the adverse impact of climate change due to global warming are:
ecosystems; food; water; health; coasts; industry, settlement and society.3 It is
projected that climate change will increase in all regions of the globe over the coming
decades, inducing increasingly frequent and ferocious extreme weather events with
accompanying dire consequences on the planet and peoples. In this context, in which
individuals and communities, particularly the most vulnerable, across Africa stand to
suffer the most, the African Commission on Human and Peoples’ Rights (African
Commission) has recognised the climate emergency to be ‘one of the most defining
human rights challenges of our time.4 This is also consistent with the identification by
the United Nations Framework Convention on Climate Change (UNFCCC) of the triple
planetary crisis, namely climate change, pollution and biodiversity loss; climate change
is the most pressing.5
2.
The African Commission has, over the years, issued statements and resolutions in
response to the impacts of climate-induced extreme weather events. It has also
advocated for a human-rights-based approach to the negotiations within the framework
of the Conference of the Parties of the UNFCCC (COP).6 Through resolutions 153
ACHPR/Res. 153(XLVI)09, Resolution 271 ACHPR/Res.271 (LV) 2014, and
Resolution 342 ACHPR/Res.342 (LVIII)2016, the African Commission entrusted the
Working Group on Extractive Industries, Environment and Human Rights (WGEI) and
1
The United Nations Framework Convention on Climate Change (UNFCCC), which has near universal membership
defines climate change as ‘a change of climate which is attributed directly or indirectly to human activity that alters
the composition of the global atmosphere and which is in addition to natural climate variability observed over
comparable time periods’. United Nations Framework Convention on Climate Change (UNFCCC) (1992) ILM 851
Article 1(2).
2
IPCC
‘Climate
Change
2021:
Summary
for
All’
(2022)
available
at
https://www.ipcc.ch/report/ar6/wg1/downloads/outreach/IPCC_AR6_WGI_SummaryForAll.pdf (accessed 10 June
2024).
3
Fourth Assessment Report (AR4) Climate Change 2007: The Physical Science Basis (Working Group I, February
2007); Climate Change 2007: Impacts, Adaptation, and Vulnerability (Working Group II, April 2007); Climate
Change 2007: Mitigation of Climate Change (Working Group III, May 2007).
4
African Commission calls for human rights-based policy measures towards climate change at COP27 available at
https://achpr.au.int/en/news/press-releases/2022-11-06/african-commission-human-rights-policy-measures-towardsclimate
5
UNFCCC ‘What is the triple planetary crisis?’ available at https://unfccc.int/blog/what-is-the-triple-planetary-crisis;
also see LJ Kotze, I Rakhyun and E Kim ‘Earth system law: The juridical dimensions of earth system governance’
(2019) 1 Earth System Governance 100003.
6
Note 4 above.
6|Page
the Working Group on Economic, Social and Cultural Rights (WG-ECOSOC) to
conduct a study on climate change and human and peoples’ rights in Africa. This study
is accordingly developed and submitted in fulfilment of these resolutions.
3.
This study is carried out within the framework of Article 45 (1)(b) of the African
Charter on Human and Peoples’ Rights (African Charter), which mandates the African
Commission to undertake studies and research on problems in the field of human and
peoples’ rights. The resolutions requesting the study and this present report of the study
have been initiated cognizant of the grave peril that the climate emergency poses to the
enjoyment of the rights and freedoms enshrined in the African Charter. For purposes
of this study, the focus is not just on the adverse impact of climate change on human
and peoples’ rights but also on the human rights impacts of the measures that are
adopted for addressing the climate change emergency. These measures concern the
actions that are taken in pursuit of the two main strategies for addressing climate
change: Mitigation and adaptation.7 This is recognised in the Paris Climate Change
Agreement which in its preamble states: ‘parties should, when taking action to address
climate change, respect, promote and consider their respective obligations on human
rights, the right to health, the rights of Indigenous Peoples, local communities,
migrants, children, persons with disabilities and people in vulnerable situations and the
right to development, as well as gender equality, empowerment of women and
intergenerational equity’.8
4.
As a study of human and peoples’ rights, rather than diving deep into the science and
all the dimensions of the implications of the phenomenon, it seeks to address the need
for clarifying the implications of the climate emergency to a) the rights and freedoms
of rights holders, b) the obligations of states parties to the African Charter, and c) the
role of the African Commission. To this end, the study aims to address the following
and related questions: What climate change-induced extreme weather events are taking
place in Africa? What have been the consequences of these events, and how did they
affect the rights and freedoms of those affected by such events? What are the
documented climate change scenarios in Africa? What are the protection measures that
individuals and peoples are entitled to and can seek in pursuit of the rights and freedoms
enshrined in the African Charter and related instruments in the context of the impact of
climate change? What obligations do the severe human rights implications of these
events give rise to? What obligations exist within the African Charter to address or
mitigate the adverse consequences of climate change? What is the range and nature of
measures expected of States Parties to the African Charter individually and collectively
7
Mitigation measures aim to minimize the extent of global warming by reducing emission levels and stabilizing
greenhouse gas concentrations in the atmosphere. Adaptation measures aim to strengthen the capacity of societies and
ecosystems to cope with and adapt to climate change risks and impacts. RJT Klein and others ‘Inter-relationships
between adaptation and mitigation. Climate Change 2007: Impacts, Adaptation and Vulnerability’ in ML Parry and
others Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate
Change (eds) Cambridge University Press, Cambridge, UK, 745-777.
8
Paris Agreement (n 5) preamble.
7|Page
to prevent or limit the impact of climate change on human and peoples’ rights? What
is the role of the African Commission in the context of the consequences of climate
change on the enjoyment of human rights in Africa?
5.
The study deploys a mixed methodology of doctrinal and qualitative research
approaches. The doctrinal research entails the analysis of the legal provisions of the
relevant African and global human rights instruments to identify the entitlements and
obligations arising from the rights. The qualitative research component entails textual
analysis of the available literature on the impacts of climate change and climate
interventions in Africa, as well as the human rights impacts on affected groups. The
compilation of the study report was preceded by a range of activities, including an
Inception Workshop and Experts’ Consultation in relation to the Study on the Impact
of Climate Change on Human and Peoples’ Rights in Africa. The event took place on
18-19 November 2022, in Dakar, Senegal. About thirty experts from different regions
in Africa participated in the exercise, which largely informed the methodology and the
scope of the study, and the production of a zero-draft report after desktop review and
analysis of relevant literature.
6.
The crafting of the Zero Draft was followed by the second phase of study, a validation
meeting which was held from 21-22 October 2023 in Arusha, United Republic of
Tanzania. It took place on the sidelines of the 77th Ordinary Session of the African
Commission and involved the presentation of the Zero Draft to selected subject-matter
experts identified by the African Commission, many of whom participated in the
Inception Meeting for the Study in November 2022. This was followed by the review,
inputs and validation of the Draft. As part of the process, the revised Zero Draft was
subsequently posted on the African Commission website. The objective was to invite
comments from the wider public in order to further review the content of the Report
examined at the Validation Meeting, and to gather relevant input for its further
amendment. More than 30 written submissions were made on the Draft posted on the
African Commission website. Following further research, harmonisation and
integration of the received comments, this final Study report is prepared.
7.
As a study of the African Commission, this study draws on the human rights approach
to climate change.9 A human rights-based approach is a conceptual framework that is
normatively based on international human rights standards and operationally directed
to promoting and protecting human rights. It analyses obligations, inequalities and
vulnerabilities to redress discriminatory practices and unjust distributions of power that
For literature on this see, SC Aminzadeh ‘A moral imperative: The human rights implications of climate change’
(2007) 39 Hastings International & Comparative Law Review 231, 234; S Humphreys (ed) Human rights and climate
change (2010); for more recent see AO Jegede ‘Arguing the right to a safe climate under the UN human rights system
(2020) 9 (2) International Human Rights Law Review 184-212.
9
8|Page
impede progress and undercut human rights.10 The African human rights instruments,
in particular the African Charter, provide for specific obligations such as the adoption
of ‘appropriate legislative or other measures to give effect’ to the rights guaranteed
under the Charter, and the ‘establishment and improvement of appropriate national
institutions’ with a view to protecting rights.11 The analysis of these obligations and
measures is necessary to understand what is expected of states in Africa when human
rights are undermined by the adverse consequences of climate change.
8.
II
As tensions between rights are not uncommon, this study is also cognizant of the fact
that tensions arise in initiating measures for preventing or limiting the impact of climate
change on human and peoples’ rights and in what is required for safeguarding rights
and addressing the adverse impacts of climate change. Thus, while climate change
affects the enjoyment, for example, of the right to development and the right to selfdetermination of poor countries, the measures required for mitigation such as notably
the phasing out or prohibition of the use of fossil resources for development ends can
have detrimental consequences for advancing the right to development in Africa,
particularly considering the fact that the continent contributed the least for climate
change.
Impact of climate change and climate interventions in Africa
9.
All parts of Africa have warmed more than the global average since the start of
industrialisation.12 The continent continued to record a warming trend, with an average
rate of change of around +0.3 °C/decade between 1991 and 2022, compared to
+0.2 °C/decade between 1961 and 1990.13 The trend is faster than the global average
warming trend of around +0.2 °C/decade for the 1991–2022 period. All African subregions have experienced an increase in the temperature trend over the past 60 years
compared to the period before 1960. The warming has been most rapid in North Africa,
around +0.4 °C/ decade between 1991 and 2022, compared to +0.2 °C/decade between
1961 and 1990.
The yearly mean temperature in the region is projected to rise faster
than the global average (projected by the IPCC with very high confidence), with the
total temperature increase likely to exceed 4°C by the end of the 21st century.14
OHCHR ‘Applying a human rights-based approach to climate change negotiations, policies and measures’ available
at https://www.ohchr.org/sites/default/files/Documents/Issues/ClimateChange/InfoNoteHRBA.pdf
11
Articles 1 and 26 of the African Charter (n 35).
12
AR 6 (n 3).
13
M Burianski and FP Kuhnle ‘A new wave of African climate change disputes on the horizon’ available at
https://www.whitecase.com/insight-our-thinking/africa-focus-winter-2023-climatechange#:~:text=Climate%20change%20poses%20significant%20challenges,slightly%20above%20the%20global
%20average.
14
L Niang and others ‘Africa’ in Barros VR and others (eds) 2014: Impacts, Adaptation, and Vulnerability. Part
B: Regional Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental
Panel on Climate Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA, 1199-1265.
10
9|Page
10.
Across North Africa, warming is already more pronounced in the summer, and wet
seasons are becoming progressively drier,15 stressing water, food security and general
livelihood.16 In 2023, the highest temperature anomalies were recorded in northwestern
Africa, especially in Morocco, the coastal parts of Mauritania and northwest Algeria.
The temperature in Southern Africa has increased by between 1.04°C and 1.44°C from
1961 to 2015.17 The occurrence of cold extremes, including frost days, has decreased,18
heat waves in the ocean, and agricultural drought have increased.19 This development
has resulted in loss of lives, impacts on human health, water, food production, and
biodiversity. It has reduced economic growth and adversely impacted on human
settlements and infrastructure.20
11.
In East Africa, the average annual surface temperatures increased by 0.7°C–1°C from
1973 to 2013, with the greatest increases experienced in the northern and central
regions.21 There has been an increase in marine heat waves, drought, shorter rains over
the Equatorial East Africa, and a drier season in the northern part.22 Glaciers on Mount
Kenya and Mount Kilimanjaro have declined.23 Health, nutrition, education, security
of food, water, shelter and the natural environment of populations are being affected
by climate change.24 In West Africa, the average annual and seasonal surface
temperatures have increased, with the highest increases in the Sahara and Sahel
resulting in drought.25 Heatwaves are hotter and longer, and cold nights are less
frequent,26 and there are fewer but more intense rainfall events resulting in flooding.
This has affected the livelihood of people in the region.27
12.
The average annual surface temperatures in Central Africa have increased,28 along with
heatwaves (inclusive of marine heatwaves), while cold extremes have decreased.29
S Cherif and others ‘Drivers of change. ‘Climate and Environmental Change in the Mediterranean Basin – Current
Situation and Risks for the Future’ in W Cramer, I Guiot & K Marini (eds) First Mediterranean Assessment
Report, Union for the Mediterranean, Plan Bleu (UNEP/MAP, Marseille, France 2020) 128.
16
J Schilling and others ‘Climate change vulnerability, water resources and social implications in North Africa’.
Regional Environmental Change (2020) 15.
17
AR 6 (n 3) section 9.5.6.1.
18
As above.
19
AR 6 (n 3) section 9.5.6.2.
20
As above.
21
AR 6 (n 3) section 9.5.5.1.
22
AR 6 (n 3) section 9.5.5.2.
23
AR 6 (n 3) section 9.5.8.
24
IPCC ‘Summary for Policymakers’ (n 3) 3−32.
25
AR 6 (n 3) section 9.5.3.1.
26
AR 6 (n 3) section 9.5.3.1.
27
AR 6 (n 3) section 9.5.3.2.
28
AR 6 (n 3) section 9.5.4.1.
29
AR 6 (n 3) section 9.5.3–7, 9.5.10.
15
10 | P a g e
Southern and eastern Central Africa were reported as drought hotspots between 1991
and 2010,30 with adverse consequences on the environment and populations.31
13.
Among those most vulnerable to climate change are the six small island states (SIDS)
of Africa. These are Cabo Verde and São Tomé and Principe situated in the Atlantic
Ocean, off the west African coast, Guinea-Bissau a coastal state located on the west
coast of Africa, the Comoros, Mauritius and Seychelles situated in the Indian Ocean,
off the east coast of the continent. These six SIDS of Africa face a severe threat from
climate change, reaching the point of endangering their existence. Most particularly,
they are severely affected by rising sea levels as well as extreme weather events like
cyclones and tsunamis.32 The biodiversity of African SIDS is among the most
threatened in the world due to climate change.33 The expected 0.45-0.82 m rise in sea
levels will threaten coastal infrastructure, exacerbate coastal erosion and inundate
beaches, thereby impacting tourism,34 agriculture and fishing. At the same time,
increasing temperatures and decreasing rainfall, threaten already limited agricultural
production and result in a high risk of drought being experienced.35 For example, such
rainfall decreases and rises in temperature in Mauritius are reported to lead to a
reduction of vegetable and other crop yields. Ocean temperature rise is eroding
biodiversity and the ecosystem of the SIDS, involving among others, coral bleaching
and the loss of habitats for various water-based species. This also bears direct adverse
impact on tourism as the deterioration of coral reefs and lagoon ecosystems
disincentivises recreation activities such as diving, snorkelling and sport fishing.
14.
According to the World Meteorological Organisation, in 2023 Africa experienced
‘deadly heatwaves, heavy rains, floods, tropical cyclones and prolonged droughts.’36
Extreme heatwaves in July and August 2023 affected northern Africa, with Tunis
reaching a record of 49.0°C and Agadir, Morocco, reaching a new maximum of 50.4
30
AR 6 (n 3) section 9.5.4.2.
The IPCC’S Sixth Assessment Report: Impacts, adaptation options and investment areas for a climate-resilient:
Central Africa 2021.
32
As above.
33
K Ramano ‘SIDS Mauritian minister warns: ‘It is a matter of life and death’ available at
https://www.bloomberg.com/news/articles/2022-04-11/climate-change-made-recent-african-cyclones-moresevere?leadSource=uverify%20wall; Comoros, Ministry of Rural Development, Fisheries, Handicrafts and
Environment National adaptation programme of action to climate change (2006); Cabo Verde, Ministry of
Environment and Agriculture National adaptation programme of action on climate change 2008-2012.
34
M Nicholls Climate change: implications for tourism: key findings from the Intergovernmental Panel on Climate
Change fifth assessment report (Cambridge University Press: Cambridge 2014).
35
S Godfrey & FA Tunhuma ‘The Climate Crisis: Climate Change Impacts, Trends and Vulnerabilities of Children
in Sub-Saharan Africa’ (2020).
36
World Meteorological Organisation ‘Africa faces disproportionate burden from climate change and adaptation
costs’ available at https://wmo.int/news/media-centre/africa-faces-disproportionate-burden-from-climate-changeand-adaptation-costs
31
11 | P a g e
°C. In the Horn of Africa, Southern and North-West Africa, many countries continue
to suffer from exceptional multi-year drought. In some of these regions, in Central and
West Africa, other countries experienced extreme precipitation events during 2023,
leading to flooding with significant casualties. In 2024, parts of southern Africa
endured severe drought, inducing food insecurity with devastating consequences to
rural communities and small-scale farmers. Exceptional seasonal rainfall has caused
death and destruction in East Africa, most particularly in Sudan and South Sudan.
15.
The AU’s Agenda 2063 The Africa We Want affirms that Africa prioritises adaptation
because it is one of the most vulnerable continents to the effects of global warming,
while contributing little to climate change. And adaptation is a critical step to cope with
the impacts of climate change on Africa. However, advances in the science of
adaptation to climate change in Africa show that while there are good practices,
adaptation measures are often insufficient to cope with changes in climate at the current
global warming level. Neither are they scalable nor affordable.
16.
Studies on adaptation measures in Africa reveal that most activities deal with
sustainable water management (food sector), agricultural intensification (food sector),
human migration (poverty and livelihoods), crop management (food sector), and
resilient infrastructure and technologies (health sector).37
17.
Human rights interface with adaptation because climate vulnerability is shaped by
differences in the adaptive capacity of affected populations38 and existing structures of
social, institutional, and economic inequality.39 Hence, adaptation actions that
minimise and prevent the adverse human rights impacts of climate change are
necessary.40 It is important that adaptation measures do not in themselves infringe on
the rights of affected communities.41 Unless designed and implemented with due regard
to human and peoples’ rights standards, adaptation practices can indeed redistribute
vulnerabilities and increase risks to already poor and marginalised people, with risk to
maladaptation outcomes mainly in the Global South countries.42 Maladaptation results
from often top-down adaptation efforts that have the opposite effect, undermining
sustainable adaptation and increasing vulnerabilities. For adaptation measures to be
inclusive and beneficial, they must respect procedural environmental rights to
37
As above.
K Thomas and others ‘Explaining differential vulnerability to climate change: A social science review’ (2018)
WIRES Climate Change July 2018 1.
39
S Mcdonnell ‘Other dark sides of resilience: Politics and power in community-based efforts to strengthen
resilience’ (2019) Anthropological Forum 1.
40
J Ensor and others ‘A rights-based perspective on adaptive capacity’ (2015) Global Environmental Change 31,
38–49.
41
N Roht-Arriaza ‘First, do no harm’: Human rights and efforts to combat climate change’ (2010) 38 Georgia
Journal of International & Comparative Law 593.
42
A Atteridge and E Remling ‘Is adaptation reducing vulnerability or redistributing it?’ (2018) 9(1) WIRES Climate
Change.
38
12 | P a g e
participation, information, and justice in the design, implementation, and monitoring
of adaptation initiatives.43
18.
In terms of mitigation measures, states in Africa are widely involved in a range of
mitigation measures. Examples of such measures include nature-based solutions such
as the Reducing Emissions from Deforestation and Forest Degradation (REDD+);
Bioenergy and Carbon Capture with Storage (BECCS); and New Technology
Solutions. Other measures of human rights significance include carbon tax, carbon
markets, and climate finance. REDD+ may offer forest communities an opportunity for
poverty alleviation and thereby have some adaptation utility. Developing countries can
receive results-based payments for emission reductions when they reduce
deforestation. However, the implementation of this project has reported issues such as
expropriation of land, non-recognition of land use and tenure, lack of access and benefit
sharing with indigenous and local populations, which have implications on rights, in
particular, the rights to property, food, housing, self-determination, and peace as
explained under section III.
19.
For REDD+ to be rights-compliant, the rights of local populations and access to its
benefits should be guaranteed. As envisaged in State Reporting Guidelines and
Principles on Articles 21 and 24 of the African Charter, individuals and communities
are entitled to a secure and equitable access to, use of and control over land, and this is
important, among others, to address hunger and poverty and to guarantee the right to
an adequate standard of living. The UNFCCC COP16 meeting in Cancun affirmed that
the ‘respect for the knowledge and rights of indigenous peoples and members of local
communities’ is part of the safeguards which should be supported and promoted in
implementing processes relating to the reduction of emissions from deforestation.44
Also, the COP agreed that countries should provide a summary of information relating
to safeguards as part of their national communications.45
20.
Bioenergy and Carbon Capture with Storage (BECCS), involving the growing or
collection and the processing of biomass for conversion to heat, electricity or liquid or
gas fuels, capturing the resulting carbon, and storing it underground or in long-lasting
products, raises significant human rights issues in Africa. As a measure that requires
conversion of a substantial area of land, which is often wrongly classified as
‘abandoned’ and ‘marginal’, BECCS can result in the displacement of local
communities, including indigenous populations and minorities in vulnerable situations,
from their land, endanger food security, affect the availability of water adversely, and
exacerbate environmental degradation. Apart from these serious human and peoples’
S Duyck ‘Promoting the principles of the Aarhus convention in international forums: The case of the UN climate
change regime’ (2015) 24(2) Review of European, Comparative and International Environmental Law 123.
44
UNFCCC ‘The Cancun Agreements: Outcome of the work of the Ad-hoc Working Group on Long-term
Cooperative Action under the Convention’ (Decision 1/CP.16 ) FCCC/CP/2010/7/Add.1.
45
Decision 12/CP.17 (n 134) paras 3 – 5.
43
13 | P a g e
rights issues, carbon capture and storage also suffer from implementation barriers,
including the cost of implementation, high water usage, transportation of the CO2,
usually through pipelines, limited geological space for storing the carbon and potential
for release of the CO2.46
21.
Carbon tax is a form of carbon pricing, and it is essentially a means through which the
government, or state entity, levies persons and corporations for the carbon content in
the fossil fuels they utilise. Carbon tax has downsides that are problematic for human
rights. It has been viewed as an indirect way of condoning reckless utilisation of natural
resources in ways that may significantly harm the environment, as long as those using
it are able to pay. Also, carbon tax is likely to impact the production costs of business
entities and increase product prices, a burden that will still be carried by consumers,
including the poor, in the end.
22.
Carbon markets, which serve as another market-based mitigation strategy, are trading
systems in which carbon credits are sold and bought. Governments, companies or
individuals use carbon markets to compensate for their greenhouse gas emissions by
purchasing carbon credits from entities that remove or reduce greenhouse gas
emissions.47 As an arrangement in which emission limits are assigned to entities (a state
or a company), in the carbon market, an entity that uses less than the allotted credits
may sell them to one that expects to exceed its limits.48 However, carbon markets are
rightly criticised for their potential role in greenwashing, thereby enabling major
greenhouse gas-emitting sectors or countries to use carbon markets as a means of
projecting climate compliance while avoiding taking steps toward tangibly reducing
their own carbon footprints.49 Despite their potential of becoming sources of climate
finance that can also serve for expanding energy access, improving health through
clean cooking, and creating jobs,50 not only that Africa account for only 11% of total
credits issued worldwide between 2016 and 202151 and it’s carbon credit is not
properly priced but also carbon markets are criticized as rendering Africa as ‘sacrifice
zones’, while permitting the largest emitters to continue polluting.52 In the absence of
mechanisms that ensure human rights compliance, instituting carbon credits may make
marginalised groups, including minorities and indigenous peoples, worse off.
Rightsholders, such as Indigenous Peoples, and local communities, may be
Vincent Gonzales, Alan Krupnick, and Lauren Dunlap, Resources for the Future ‘Carbon Capture and Storage 101’
(2022) available at https://www.rff.org/publications/explainers/carbon-capture-and-storage-101/
47
UNDP ‘What are carbon markets and why are they important?’ available at https://climatepromise.undp.org/newsand-stories/what-are-carbon-markets-and-why-are-they-important
48
As above.
49
Center for American Progress ‘The CFTC Should Raise Standards and Mitigate Fraud in the Carbon Offsets
Market’.
50
The World Bank State and Trends of Carbon Pricing, 2022
51
McKinsey Vivid Economics ‘Carbon Credit Database, drawing on Verra, Gold Standard, ACR, CAR, Plan Vivo’
(2022).
52
D Scott & A Smith ‘Sacrifice zones’ in the green energy economy: Toward an environmental justice framework’
(2017) 62(3) McGill Law Journal 861.
46
14 | P a g e
disempowered to participate throughout all stages of projects and policy lifecycle, from
conceptualisation and design to implementation and monitoring of carbon credit
projects. This consequence is inevitable where existing and future carbon crediting and
certification schemes are non-compliant with international human rights standards.
23.
Depending on the conditions and nature of projects it is used for, climate finance, funds
sourced from national and international public and private sources and are directed to
climate mitigation, adaptation and loss and damage, could weaken the ability of states
to invest in measures that will improve livelihood and enhance the promotion and
protection of human rights in the context of climate change. In Africa, financed projects
in response to climate change may threaten substantial rights, including the right to
adequate housing, the right to food, the right to water, the right to property, and the
right to self-determination in the key African human rights instruments. It has been
observed, for instance, that forced evictions and violations of the right to adequate
housing are highly likely when projects involve large-scale acquisitions of land. The
report by the UN Special Rapporteur on the Right to Food has noted that the production
of biofuels poses a threat to the right to housing in regions that are currently being
targeted as potential sites for biofuel production.53 It has been observed that ‘whereas
agro-fuel production could bring positive benefits for climate change and for farmers
in developing countries, agro-fuels have also contributed to increasing the price of food
commodities ‘because of the competition between food, feed and fuel for scarce arable
land’.54 Financed projects in the energy sector, including in relation to hydropower,
may be associated with the brutal repression of protests and the use of violent
intimidation tactics against human rights defenders. A study analyses how ‘child
responsive’ projects funded by key multilateral climate funds have been over a 17-year
period. The report concludes that children are being failed by climate funding
commitments, despite bearing the brunt of the climate crisis.55
24.
The 2023 African Leaders Nairobi Declaration on Climate Change and Call to action
affirms progressive proposals that are relevant to climate finance such as the swift
operationalization of the Loss and Damage Fund by COP-28, a 10-year grace period
for sovereign debt, debt suspension clauses to allow African states to prioritize climate
change mitigation and adaptation over servicing sovereign debt, equitable
representation of African states in the global governance of Multilateral Development
Banks (MDBs), and the actual transfer of environmentally sound technologies to
African countries.56 Participation of stakeholders is key in Africa to ensure that groups
and communities in vulnerable circumstances are not excluded from participating in
53
Olivier De Schutter (n 177).
HRC ‘Promoting rights-based climate finance for people and planet’ by, Tessa Khan, HRC/WG.2/19/CRP.4, 18
April 2018.
55
Children’s Environmental Rights Initiative (CERI) ‘Falling short: Addressing the Climate Finance Gap For
Children’ June 2023.
56
African Union ‘African Leaders Nairobi Declaration on Climate Change’ September 2023.
54
15 | P a g e
approval, implementation and monitoring and evaluation processes of a project being
financed on climate change.
25.
The observance of the foregoing is necessary to ensure that climate finance serves the
appropriate interest of ensuring not only an effective climate mitigation and adaptation,
but the protection of the rights guaranteed in key human rights instruments to
populations who may be at risk of financed projects. Given the negligibility of Africa’s
contribution to greenhouse gas emissions, it will not be consistent with the
development needs of Africa and the right to development under Article 22 of the
African Charter to demand zero-emission development as a requirement of a human
rights-compliant climate finance. This is directly linked to just transition in the context
of climate change.
Relationship of Climate Impacts with Human and Peoples’ Rights in Africa
III
3.1. How climate change affects human and peoples’ rights
26.
In terms of the impact of climate change, there are two dimensions that are of particular
significance from the perspective of human rights. The first relates to the impact of
climate change on the natural systems that are necessary for a natural environment safe
to human wellbeing. The increase in global temperature owing to GHG significantly
affects global weather patterns, leading to heatwaves, cyclones, variability in
precipitation, and an increase in flooding, droughts, water shortages, and sea-level rise.
Climate change also results in biodiversity loss and damage to natural ecosystems.
27.
The second relates to the impact of climate change on individuals and peoples. Climate
change-induced extreme weather events, such as heatwaves, floods, droughts, forest
fires, and air pollution, could cause bodily injury and even death. The food vector,
respiratory tract infections, and water-borne diseases that climate change instigates
threaten the health of individuals and communities, disproportionately affecting
vulnerable groups. Thus, in the context of the cyclones that hist East and South Eastern
Africa, in its Resolution 417 (2019), the African Commission expressed its deep
concern about ‘the human rights implications of the two cyclones, including destruction
of homes and other property, closure of schools and offices, the heightened risk of
large-scale cholera outbreaks and the specific vulnerability of displaced women and
girls to gender based violence and exploitation.’57
African Commission on Human and Peoples’ Rights “Resolution on the human rights impacts of extreme weather
in Eastern and Southern Africa due to climate change” available at https://achpr.au.int/en/adopted-resolutions/417resolution-human-rights-impacts-extreme-weather-eastern-and-souther (accessed 16 March 2026).
57
16 | P a g e
28.
The water scarcity and the food insecurity that climate change induces in some regions
of the continent also result in a lack of access to the socio-economic rights of
individuals to water and food. The destruction that extreme weather events cause also
affects individuals and communities’ rights to housing, livelihoods and jobs and access
to basic services, including electricity, water, health care services and education. As
the Inter-American Court of Human Rights summed it, ‘manifestations of climate
change such as floods, droughts, heatwaves, sea level rise, and the increase of vectorborne diseases jeopardize the enjoyment of rights such as to life, personal integrity,
health, private and family life, property, housing, freedom of movement and residence,
water, food, work and social security, culture, and education.’58 In terms of the rights
provided for in the African Charter on Human and Peoples’ Rights, other rights that
such manifestations of climate change threaten include the rights of peoples to
existence, self-determination, natural resources, development and peace and security.
29.
It is, however, worth pointing out that climate change-induced extreme weather events
do not affect all individuals and peoples equally. The level and nature of how such
events affect individuals and peoples is a function of the interaction between exposure
to such climatic events and the level of vulnerability of individuals and peoples in
question.
3.2.
How climate change affects the rights of individuals and peoples and the obligations of
states
30.
58
59
The impact of climate change extends not only to the rights of individuals and peoples’
but also to the obligations of states. First, climate change bears directly and
indirectly on access to and enjoyment of human and peoples’ rights. As a
phenomenon characterised by the African Commission as one of the most defining
human rights challenges of our time,59 climate change threatens all categories of rights,
including the rights to life, personal security, water, food, health, housing, culture,
education, existence, self-determination, development, and a safe and healthy
environment. While extreme weather events such as cyclones, flooding, forest fires,
and heatwaves and such slow-onset events as drought and sea level rise may lead to
direct deprivation of human and peoples’ rights, in some cases they lead to indirect
deprivation of some rights. Thus, drought leads to direct deprivation of the right to
food, and in extreme cases, the deprivation of the right to food leads to death, thereby
leading to indirect deprivation of the right to life.
Note 22 above, para 234.
Note 4 above.
17 | P a g e
31.
Second, climate change also has a direct and indirect bearing on the delivery by states
of their obligations to respect, protect (including through remedying breaches of
rights), promote and fulfil these rights. It cannot be emphasised enough that climate
change entails major legal implications for States Parties vis-à-vis the obligations they
bear in respect to the rights enshrined in the human and peoples’ rights instruments by
which they are legally bound.60 One of the ways by which climate change affects the
delivery by states of their human rights obligations is through the enormous loss and
damage it causes and the resultant diversion of limited resources of states to responding
to such loss and damage rather than channelling such resources towards expanding
access to justice, education, health, social security and investment in job creation
development projects. According to the African Development Bank, African countries
lose 5–15% of per capita GDP growth annually due to climate change and face
projected costs of $290–$440 billion between 2020 and 2030.61
32.
Third, the design and implementation of certain climate response measures, such as
carbon markets, carbon taxes, and carbon capture projects, can themselves adversely
affect the rights of individuals and peoples and obligations of states, particularly in the
absence of a human rights-based, effective regulatory and accountability framework
governing such measures. In some cases, carbon market initiatives have resulted in land
dispossession and the displacement of vulnerable communities, indigenous peoples
and/or minorities. Consequently, both the effects of climate change and some marketbased supposedly ‘mitigation’ or ‘adaptation’ strategies can threaten human dignity,
underscoring the need for rights-based, people-centred approaches to climate action.62
Climate change and specific human and peoples’ rights
3.3.
33.
60
This section discusses specific selected rights which are impacted by the effects of
climate change. While climate change impacts on all human and peoples’ rights, it does
not affect all specific human and peoples’ rights in the same way. Its impact on some
rights is much more profound than on others. As such, even if the discussion in this
section does not cover all the human and peoples’ rights, it proceeds on the premise
that all the rights are indivisible and interdependent as envisaged in the preamble to the
African Charter. Denial of one right invariably hinders the enjoyment of other rights,
and the fulfilment of one right often depends, wholly or in part, upon the fulfilment of
others.63
As above.
AfDB, Africa loses up to 15% of its GDP per capita annually because of climate change – AfDB Acting Chief
Economist Kevin Urama available at https://www.afdb.org/en/news-and-events/press-releases/africa-loses-15-itsgdp-capita-annually-because-climate-change-african-development-bank-acting-chief-economist-kevin-urama54660#:~:text=According%20to%20Kevin%20Urama%2C%20the%20Acting%20Chief,United%20Nations%20Fra
mework%20Convention%20on%20Climate%20Change (accessed 28 March 2026).
62
Note 1 above.
63
NJ Udombana ‘Social Rights Are Human Rights: Actualizing the Rights to Work and Social Security in Africa’
(2006) 39(2) Cornell International Law Journal 181; DJ Whelan Indivisible human rights: A history (2010) 4.
61
18 | P a g e
3.3.1. The Right to Life
34.
The right to life is explicitly protected under Article 4 of the African Charter, Article
5(1) of the ACRWC, Article 4(1) of the Maputo Protocol, Article 8(1) of the Persons
with Disabilities Protocol, Article 8(2) of the Older Persons Protocol, Article 7 of the
African Youth Charter on protection of private life and Articles 1(j), 9(1) (c) and 9(2)
(e) of the Kampala Convention. Article 2(3) of the OAU Convention provides that ‘no
person shall be subjected by a Member State to measures such as rejection at the
frontier, return or expulsion, which would compel him to return to or remain in a
territory where his life, physical integrity or liberty would be threatened’.64 In Noah
Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by
Zimbabwe Human Rights NGO Forum) v. Zimbabwe, the African Commission
highlighted that the sanctity of life requires that lives not be taken in the interest of the
common good.65
35.
The right to life is recognised as part of customary international law and the general
principles of law,66 and as a jus cogens norm which is universally binding at all times.67
In its General Comment No 3 of 2015, the African Commission affirmed that the right
to life is globally recognised as a foundational human right, and it is of the nature that
should not be interpreted narrowly.68 Rather, it should be understood that for the right
to life to be achieved, ‘the realisation of all human rights’ is a prerequisite.69 This
viewpoint also resonates with the position of the Human Rights Committee of the
ICPPR, which describes the right to life as the ‘supreme right’, ‘basic to all human
rights’, and it is a right from which no derogation is permitted even in time of public
emergency.70
36.
A number of effects of climate change, earlier described under previous rights, pose
direct and indirect threats to human lives in Africa. IPCC AR6 report on Africa projects
with high confidence an increase in death, disease and injury from heatwaves, floods,
storms, fires and droughts for men and women.71 Also, the adverse impacts of climate
64
OAU Refugee Convention (n 343).
Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights
NGO Forum) v. Zimbabwe April 2012, ACHPR, 295/04, 51st Ordinary Session, para 120.
66
W Paul Gormley ‘The Right to Life in International Law’ (1987) 16 Denver Journal of International law & Policy
191.
67
Human Rights Committee, General Comment 6, Article 6 (Sixteenth session, 1982) 6, (describing this ‘supreme
right’ as one ‘which should not be interpreted narrowly’).
68
African Commission on Human and Peoples' Rights, General Comment No. 3 on the African Charter on Human
and Peoples' Rights: The Right to Life (Article 4), 18 November 2015, adopted during the 57th Ordinary Session of
the African Commission on Human and Peoples’ Rights held from 4 to 18 November 2015 in Banjul, The Gambia.
69
As above.
70
General Comments No. 6 (n 710) para 1.
71
See generally AR 6 (n3).
65
19 | P a g e
change on food security are likely to increase hunger and malnutrition, thereby
negatively affecting child growth. At the same time, rising temperatures are linked to
higher incidences of malaria, which may in turn increase mortality among children and
young people across different parts of Africa.72 By 2030, it is projected that climate
change impacts will result in 48,000 additional deaths from diarrhoeal disease in
children under 15 globally.73 Climate-induced displacement within and outside
national borders is often characterised by occurrences such as flooding and drought,
which have threatened the right to life.74
37.
Hence climate change poses a threat to the right to life protected under Article 4 of the
African Charter, Article 5(1) of the ACRWC, Article 4(1) of the Maputo Protocol,
Article 8(1) of the Persons with Disabilities Protocol, Article 8(2) of the Older Persons
Protocol, Article 7 of the African Youth Charter and Article 9(1) (c) and 9(2) (e) of the
Kampala Convention.
3.3.2. Right to Receive Information and Express Opinion
38.
Access to information on climate change and the articulation of opinion are crucial to
climate change education and civic activism around climate change issues in Africa.
Without this right, knowledge of populations will be restricted and activism for change
will be risky.
39.
The right to receive information and express opinion is guaranteed under Article 9 of
the African Charter, which provides that ‘every individual shall have the right to
receive information’ and the right to ‘express and disseminate’ their opinion. This is
also safeguarded under Article 7 of the ACRWC, Article 9 of the Maputo Protocol,
Articles 23 (freedom of expression of opinion) and 24 (access to information) of the
Persons with Disabilities Protocol, Articles 4 (freedom of expression) of the African
Youth Charter, and impliedly under Article 17 (right to active participation) of the
Older Persons Protocol, and Articles 10(2) and 11(2) of the Kampala Convention.
40.
The significance of access to information is well described in the African Commission
Model Law on Access to Information for Africa (Model Law).75 According to the
Model Law, an effective implementation of access to information legislation can
enhance transparency, accountability and greater participation of the populace in public
affairs and address corruption.76 It requires public and private bodies to publish
72
As above.
World Health Organization Quantitative risk assessment of the effects of climate change on selected causes of
death, 2030s and 2050s (WHO 2014) 44.
74
IDMC (n 91).
75
African Commission Model Law on Access to Information for Africa, prepared by the African Commission on
Human and Peoples’ Rights.
76
African Commission Model Law on Access to Information for Africa (n 718) 9.
73
20 | P a g e
environmental impact assessment reports within 30 days of the information being
generated or received by that body.77 In its Resolution on the Situation of Freedom of
Expression in Africa, the African Commission reiterates the importance of freedom of
expression for the enjoyment of every human right. It calls on States to adopt necessary
measures to uphold their obligations under the African Charter and other international
instruments, including the UDHR and the ICCPR, on the right to freedom of
expression. 78
41.
The 2019 Declaration of Principles on Freedom of Expression and Access to
Information in Africa affirms the importance of freedom of expression and access to
information (Principle 1) and non-interference with freedom of opinion (Principle 2)
in Africa.79 It protects everyone from sanctions against the disclosure of information
on any wrongdoing that poses a serious ‘threat to health, safety or the environment, or
whose disclosure is in the public interest, in the honest belief that such information is
substantially true’.80The African Commission in Resolution 196 of 2011 on human
rights defenders in Africa affirms that the cooperation of human rights defenders with
the African human rights system is key in ‘promoting human rights, democracy and
the rule of law in Africa’.81 In Agnes Uwimana-Nkusi & Saidati Mukakibibi v. Rwanda,
the African Commission was of the opinion that the restrictions imposed in the context
of freedom of expression for the protection of national security were not necessary in
a democratic state; hence, it found that the Republic of Rwanda had violated Article
9(2) of the African Charter.82
42.
Access to and use of the internet are an integral aspect of the right to receive
information and express opinion, which is gaining relevance in the context of climate
change and human rights. Access to the internet is also recognised as a prerequisite for
achieving many of the UNSDGs, including SDG 13 on climate action, and is explicitly
addressed in SDG 9 (c), which seeks to ‘provide universal and affordable access to the
Internet in least developed countries by 2020’.83 Improving access to the use of the
internet is central to climate adaptation and mitigation strategies in collaboration with
communities and citizens. It can project community-driven mechanisms for monitoring
and accountability on government spending and projects on climate actions,84
77
African Commission Model Law on Access to Information for Africa (n 718) para 7(1)(h).
Resolution on the Situation of Freedom of Expression in Africa - ACHPR/Res.99(XXXX)06. done in Banjul, the
Gambia, 29 November 2006.
79
Declaration of Principles on Freedom of Expression and Access to Information in Africa, adopted by the African
Commission on Human and Peoples' Rights (the African Commission) at its 65th Ordinary Session, which was held
from 21 October to 10 November 2019 in Banjul, The Gambia.
80
Declaration of Principles on Freedom of Expression and Access to Information in Africa (n 722) para 35(1)
81
ACHPR 196 Resolution on Human Rights Defenders in Africa - ACHPR/Res.196(L)2011’, The African
Commission on Human and Peoples’ Rights meeting at its 50th Ordinary Session held from 24th October to 5th
November 2011, in Banjul, The Gambia.
82
Communication 426/12 Agnes Uwimana-Nkusi & Saidati Mukakibibi V. Rwanda April 16, 2021
65th Ordinary Session
83
‘Track, Report, and take action’ available at https://sdgs.un.org/goals/goal9 (accessed 24 April 2024).
84
TRACKA available at https://tracka.ng/#/home (accessed 24 April 2025).
78
21 | P a g e
including through citizen journalism,85 develop repositories of open data on climate
change,86 and foster civic mobilisation.87 It may also enhance networking among the
youth on issues of climate change,88 promote community participation in service
delivery to ensure critical natural resources are not wasted,89 and strengthen citizen-led
disaster responses in the event of an environmental emergency such as flooding.90
43.
A particular approach to meaningful access that can be successfully adopted to bring
marginalised communities online is through community-centred connectivity
initiatives.91 Community connectivity set up in this participatory way has been shown
to have numerous knock-on development benefits for Indigenous communities in
particular, and to enable these communities to participate in the adaptation strategies
listed above. This includes involving communities in local data-capture initiatives,
such as through digital sensor projects, as well as through contributing to intersectional
data studies to address the dearth of climate change data that is available, as highlighted
in the study.92 They also serve as ways to digitally capture and share Indigenous
knowledge and adaptation systems and strategies. Adaptation in the face of adverse
consequences of climate change requires adequate information.93 Also, the adverse
consequences of climate change on the rights of present and future generations are
triggering activism regarding the adequacy of measures at global and other levels. Also,
the failure of states to adopt adequate measures in the face of the urgency of the crisis,
which is leading to increasing mobilisation and critique by human and environmental
defenders.94
44.
In all, the observance of states' human rights obligations to respect the right to freedom
of opinion and expression will have implications which may positively or negatively
impact on the right to access and receive information and the rights of activists and
vulnerable groups under Article 9 of the African Charter, Article 7 of the ACRWC,
‘Media Awareness and Justice Initiative’ available at https://majinigeria.org/ (accessed 25 April 2025).
Digital Earth Africa ‘Unlocking the promise of tomorrow from patterns of the past’ available at
https://www.digitalearthafrica.org/ (accessed 25 April 2025).
87
Amandla Action for Mzansi ‘Join the movement of 962,049 people building a more just and people-powered
Mzansi’ available at https://amandla.mobi/ (accessed 25 April 2025).
88
‘Kenya Youth Biodiversity Network’ available at https://youth4biodiversity.org/ (accessed 26 April 2025).
89
‘ Cityspec: A mobile inspection tool, improving service delivery’ available at http://vpuu.org.za/safe-nodearea/cityspec-service-delivery (accessed 28 April 2025).
90
‘Disaster Information Volunteers’ available at https://www.seedsindia.org/portfolio/disaster-informationvolunteers/ (accessed 28 April 2025).
91
‘Digitalisation
for
a
just
social
compact’
available
at
https://researchictafrica.net/wpcontent/uploads/2024/04/core-project-report_20231010.pdf (accessed 28 April 2025).
92
See Global Indigenous Data Alliance. (n.d.). History of Indigenous Data Sovereignty available at
https://www.gida-global.org/history-of-indigenous-data-sovereignty (accessed 2 May 2025).
93
VK Cherotich, O Saidui & BO Bebe ‘Access to climate change information and support services by the vulnerable
groups in semi-arid Kenya for adaptive capacity development’ (2012) 20(2) African Crop Science Journal 169.
94
Global Witness ‘Standing Firm: the land and environmental defenders on the frontlines of the climate crisis’,
available
at
https://www.globalwitness.org/en/campaigns/environmental-activists/land-and-environmentaldefenders-annual-reportarchive/ (accessed 2 May 2025).
85
86
22 | P a g e
Article 9 of the Maputo Protocol, Articles 23 and 24 of the Persons with Disabilities
Protocol, Articles 4 and 5 of the African Youth Charter, and impliedly under Article
17 of the Older Persons Protocol and Articles 10(2) and 11(2) of the Kampala
Convention.
3.3.3
The Right to Association and Assembly
45.
Closely linked to the right to freedom of expression is the right to freely assemble.
Article 11 of the African Charter provides for the right of every individual to assemble
freely with others, subject only to necessary restrictions provided by law. Also, it is
guaranteed by Article 8 of the ACRWC, and impliedly Article 9 (participation) of the
Maputo Protocol, Article 5 (participation) of the African Youth Charter, Article 3(c)
(full and effective participation and inclusion in the society), Article 4(j) (effective
participation of representative organizations) of the Persons with Disabilities Protocol,
and Article 5(3) of Older Persons Protocol.
46.
The African Commission Resolution on the Right to Freedom of Association of 1992
advises that in regulating the use of this right, the competent authorities should not
‘override constitutional provisions or undermine fundamental rights guaranteed by the
constitution and international standards’.95 An association is defined as an organised,
independent, not-for-profit body based on the voluntary grouping of persons with a
common interest, activity or purpose. Such an association may be formal (de jure) or
informal (de facto).96 Assembly refers to an act of intentionally gathering, in private or
in public, for an expressive purpose and for an extended duration. The right to assembly
may be exercised in a number of ways, including through demonstrations, protests,
meetings, processions, rallies, sit-ins, and funerals, through the use of online platforms,
or in any other way people choose.97 In Malawi African Association and others v.
Mauritania, the African Commission ruled against the inappropriate application of
criminal measures to associations.98 The African Commission in Law Offices of Ghazi
Suleiman v. Sudan requires States to refrain from imposing external limitations that
unreasonably restrict the right to freedom of peaceful assembly, such as unreasonable
limitations on freedom of movement.99
47.
In 2021, the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly
and of Association released a report which emphasizes that the exercise of the rights to
freedom of peaceful assembly and of association is essential to advancing climate
ACHPR ‘5 Resolution on the Right to Freedom of Association’ ACHPR/Res.5(XI)92.
Guidelines on Freedom of Association and Assembly in Africa, adopted at the Commission’s 60th Ordinary
Session held in Niamey, Niger, from 8 to 22 May 2017 (Guidelines on Freedom of Association and Assembly in
Africa) para 1.
97
Guidelines on Freedom of Association and Assembly in Africa (n 739) para 3.
98
Malawi African Association and others v. Mauritania, Comm. Nos. 54/91, 61/91, 98/93, 164-196/97 & 210/98
(2000), paras. 106-7.
99
Law Offices of Ghazi Suleiman v. Sudan, Comm. No. 228/99 (2003).
95
96
23 | P a g e
justice.100 The Special Rapporteur’s report underscores the need for protecting the
right, considering that the response of the global community has been unimpressive, as
many governments continue to delay action or deny climate change altogether. This
inaction has triggered a new wave of global activism or movement calling for greater
ambition. At the forefront are women, children, youth and Indigenous Peoples in both
the global North and South leading the activism.101 The rights to freedom of peaceful
assembly and of association are essential to this movement as they remain the means
through which groups of individuals can gather together around shared goals.102
48.
In Africa, the formation and activities of such groups may be confronted or hindered
by powerful actors, including transnational fossil fuel, extractive, agribusiness and
financial institutions, which may exert pressure on States to weaken their response to
the climate crisis in particular and to environmental issues in general, and rather take
actions or sanctions against climate activists. The Special Rapporteur warns that such
attacks have sometimes led to the ‘portrayal of climate justice activists as national
security threats, rather than as front-line human and environmental rights defenders’.103
Evidence is emerging in Africa, where, in some instances, climate activists have been
negatively labelled.104 In other instances, they have been prosecuted, while some states
have in place legislation which constrains the space for activism.105
49.
Approaches and measures by states in Africa in response to activities carried out in the
exercise of freedom of association and assembly may have negative or positive
implications on climate change activism as guaranteed under Article 11 of the African
Charter, Article 8 of the ACRWC, and impliedly in Article 9 of the Maputo Protocol,
Article 5 of the African Youth Charter, Article 3(c) and Article 4(j) of the Persons
with Disabilities Protocol, and Article 5(3) of Older Persons Protocol.
3.3.4. The Right to Food
50.
Although not categorically stated in the African Charter, the jurisprudence of the
African Commission shows that the right to food is justiciable. In Social and Economic
Rights Action Centre (SERAC) and Centre for Economic and Social Rights (CESR) v
UNGA ‘Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association,
Clément Nyaletsossi Voule, Exercise of the rights to freedom of peaceful assembly and of association as essential
to advancing climate justice’ A/76/222, 23 July 2021 UNGA report of 2021.
101
As above.
102
UNGA report of 2021 (n 743) paras 11 and 12.
103
UNGA report of 2021 (n 743) para 18.
104
Daily Maverick ‘Mantashe calls environmental activism ‘colonialism and apartheid of a special type’ amid
opposition to Shell Wild Coast survey’ by Sgqolana, 10 Dec 2021.
105
‘Ugandan climate activists face charges after a month in maximum security jail’ available at
https://www.theguardian.com/world/2024/feb/06/uganda-climate-pipeline-activists-students-jail-charges (accessed
2 May 2025).
100
24 | P a g e
Nigeria (Ogoniland case),106 the African Commission interpreted Articles 4 (right to
life), 16 (right to health) and 22 (right to economic, social and cultural development)
to ground a violation of the right to food. The right to food is also expressly mentioned
in Article 15 of the Maputo Protocol, Article 14(2)(c) of the ACRWC. A similar
provision on access to food is found in the Older Persons Protocol,107 Persons with
Disabilities Protocol,108African Youth Charter,109 and the Kampala Convention.110
51.
ACHPR Principles and Guidelines on the Implementation of Economic, Social and
Cultural Rights in the African Charter on Human and Peoples’ Rights (Nairobi
Guidelines) affirms that the right to adequate food is an individual right that is
indivisibly linked to the inherent dignity of the human person and is indispensable for
the fulfilment of other human rights. The right to adequate food is realised when every
man, woman and child, alone or in community with others, has physical and economic
access at all times to adequate food or means for its procurement.111
52.
While examining the normative content of the right to food in General Comment No.
12 of 1999, the CESCR refers to the plight of vulnerable population groups and
individuals.112 It observes that normative elements of the right to food, that is, the
availability, accessibility, acceptability and safety, can be negatively affected by
climatic and ecological factors; hence, State parties should put in place appropriate
preventive measures to ensure that climate change does not adversely affect the right
to food.113 The CESCR explains the concepts of adequacy and sustainability,
highlighting that ‘[t]he notion of sustainability is intrinsically linked to the notion of
adequate food or food security, implying food being accessible for both present and
future generations. The precise meaning of ‘adequacy’ is to a large extent determined
by prevailing social, economic, cultural, climatic, ecological and other conditions,
while ‘sustainability’ incorporates the notion of long-term availability and
accessibility’.114 In relation to the availability of food, the CESCR notes that ‘the
availability of food in a quantity and quality sufficient to satisfy the dietary needs of
individuals, free from adverse substances, and acceptable within a given culture’.
Accessibility of food is possible when the hindrances that interfere with the enjoyment
of the right are removed.115 The Committee on the Elimination of Discrimination
against Women (CEDAW) in General Recommendation No. 34 of 2016 on the Rights
106
Communication 155/96, Social and Economic Rights Action Centre (SERAC) and Centre for Economic and
Social Rights (CESR) v Nigeria (Ogoniland case).
107
Preambular provision of the Older Persons Protocol (n 40).
108
Article 20 (1) of Persons with Disabilities Protocol (n 41).
109
Article 14(2) of the African Youth Charter (n 43).
110
Article 9(2)(b) of the Kampala Convention (n 36).
111
ACHPR Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African
Charter on Human and Peoples’ Rights (Nairobi Guidelines), 2010 paras. 83-85.
112
CESCR General Comment No. 12: The Right to Adequate Food (Art. 11), adopted 12 May 1999 E/C.12/1999/5
(General Comment No. 12) paras 13, 28.
113
General Comment No. 12 (n 496) paras 4 and 7.
114
General Comment No. 12 (n 496) para 7.
115
General Comment No. 12 (n 496) para 8.
25 | P a g e
of Rural Women affirms that women, in particular rural women, are among the most
likely to suffer when food prices escalate.116 It further stresses that environmental
issues, such as climate change and natural disasters, triggered by the unsustainable use
of natural resources, as well as poor waste management practices, have damaging
impacts on the well-being of rural women.117
53.
Changing climate in Africa is reducing crop yields, grazing land,118 and poses a major
threat to marine and freshwater fisheries and aquaculture.119 The combination of high
temperatures and high relative humidity is dangerous for livestock.120 Shortages of safe
food staples will have disproportionate impacts on children, particularly on those living
in poverty.121 Evidence also suggests that food insecurity associated with climate
change disproportionately affects girls.122Climate sudden and slow onsets will
negatively affect women who are small-scale farmers in Africa, and reduced crop yield
due to climate change may result in a lack or inadequate availability of food for women
for their own consumption and for their families.123 Food shortages and malnutrition
tend to affect persons with disabilities and their families to a larger extent than the
general population.124 The lack of access to adequate food is often associated with
displacement, including displacement linked to climate change.125 Older persons suffer
the effects of climate change on food, considering that they are likely to live in poverty
and on fixed incomes, hence struggle to cope with the rising costs of food.126 The
productivity of youth in rural areas who are involved in small-scale farming is
negatively impacted by reduced rainfall,127 while young persons are likely to suffer due
to a lack of employment or dependence on parents whose livelihood is undermined by
climate change.128
54.
The effects of climate change threaten the right to food guaranteed to everyone under
the combined reading of Articles 4 (right to life), 16 (right to health) and 22 on the
116
General Recommendation No. 34 (n 244).
General Recommendation No. 34 (n 244) para 10.
118
See generally AR 6 (n 3) sections 9.8.2.1; 9.8.2.2; 9.8.2.4; and 9.8.2.3.
119
AR 6(n 3) section 9.8.5.1.
120
AR 6(n 3) section 9.8.2.4.
121
OHCHR climate change and children study report (n 251) para 13.
122
Global Gender and Climate Alliance, Gender and Climate Change: A Closer Look at Existing Evidence (2016),
25.
123
Gender Equality and Food Security: Women’s Empowerment as a Tool against Hunger (2013).
124
OHCHR climate change and disability study report (n 349)) para 14; S Jodoin, N Ananthamoorthy and K Lofts
‘A disability rights approach to climate governance’(2020) 47 Ecology Law Quarterly 73.
125
‘OHCHR Handbook for the Protection of Internally Displaced Persons’ available at
https://www.unhcr.org/4794b5d32.pdf (accessed 2 May 2025).
126
OHCHR Older persons study report (n 333) paras 43-44.
127
Globaldev ‘The role of youth in transforming food systems in Africa’ available at
https://www.globaldev.blog/blog/role-youth-transforming-food-systems-africa (accessed 5 May 2025).
128
D Nanyonga ‘Agriculture and Food Security in Africa: Why are Youth Not at the Forefront?’ Jun 15, 2021,
available at https://icpac.medium.com/agriculture-and-food-security-in-africa-why-are-youth-not-at-the-forefront5d8af0d8dd5c (accessed 5 May 2025).
117
26 | P a g e
right to food of the African Charter, Article 14 (2)(c) of the ACRWC, the goal of the
Older Persons Protocol,129 Article 20(1) of the Persons with Disabilities Protocol,130
Article 14(2) of the African Youth Charter,131 and Article 9(2)(b) of the Kampala
Convention.132
3.3.5. Right to Water
55.
The water right is not expressly mentioned in the African Charter but can be derived
from Article 16(1) of the African Charter on the right to enjoy the best attainable state
of physical and mental health. In fulfilment of Article 14(2)(2) on the right to health
and health services, the ACRWC imposes an obligation on states to ensure the
provision of adequate water. A similar provision can be found in Article 15 of the
Maputo Protocol, and similar calls on states for the provision of access to water are
found in the preamble of the Older Persons Protocol.133 Article 20(1) of the Persons
with Disabilities Protocol,134 Article 9(2)(b) of the Kampala Convention,135 and
implicitly in Article 14(3)(b) of the African Youth Charter, which calls upon states to
take measures to meet basic needs of the Youth.136
56.
The African Commission’s Guidelines on the Right to Water in Africa provides that
the human right to water entitles everyone to sufficient, safe, acceptable, physically
accessible and affordable water for personal and domestic uses.137 It further asserts that
States shall apply a human rights-based approach to guide policies and measures
designed to address climate change and prevent their negative human rights impacts. It
also calls for the identification and strengthening of right-holders to participate and
make their claims, adapt to climate change, and ensure the integration of mitigation and
adaptation into human rights impact assessments, so that such measures do not interfere
with the enjoyment of the right to water. It demands that duty bearers guarantee nondiscriminatory, meaningful and informed participation for the development of
mitigation and adaptation measures, mobilise resources, and cooperate internationally
for sustainable human rights-based development, and to ensure that water infrastructure
is resilient to extreme weather events and rising sea levels. Other duties imposed on
duty bearers include awareness creation regarding the impact of climate change on the
right to water, including water availability, and chemical and biological contamination;
and accountability, as well as remedies for human rights harms caused by climate
129
Preambular provision of the Older Persons Protocol (n 40).
Article 20 (1) of Persons with Disabilities Protocol (n 41).
131
Article 14(2) of the African Youth Charter (n 43).
132
Article 9(2)(b) of the Kampala Convention (n 36).
133
Preambular provision of the Older Persons Protocol (n 40).
134
Article 20 (1) of Persons with Disabilities Protocol (n 41).
135
Article 9(2)(b) of the Kampala Convention (n 36).
136
Article 14(2) of the African Youth Charter (n 43).
137
ACHPR Guidelines on the Right to Water in Africa, adopted 31 July 2019, General provisions 12(1).
130
27 | P a g e
change.138 This position is affirmed in the Commission’s Nairobi Guidelines on
Principles and Guidelines on the Implementation of Economic, Social and Cultural
Rights in the African Charter on Human and Peoples’ Rights.139
57.
General Comment 15 on the right to water of the CESCR recognises that the right to
water is ‘fundamental for life and health’ and a ‘prerequisite for the realisation of other
human rights’.140 The normative contents of the right to water are availability, quality
and accessibility. Availability connotes that the ‘[w]ater supply for each person must
be sufficient and continuous for personal and domestic uses’,141 quality entails that
water must be safe and free of any substance that is harmful to health.142 Water
accessibility has four dimensions, namely, physical, economic, non-discrimination and
information dimensions.143 In Free Legal Assistance Group and Others v Zaire, the
Commission held that the ‘failure of the government to provide basic services such as
safe drinking water and electricity and the shortage of medicine … constitutes a
violation of Article 16 [right to health’.144
58.
Stressors which reduce the availability, quality and quantity of water exist in most parts
of Africa.145 Rainfall and river discharge have been extremely variable in North Africa
between 50% above and 50% below historic levels.146 Climate change worsens an
already calamitous situation of access to water in that it impacts negatively across
water-dependent sectors: from freshwater supply to people and agriculture, to
availability of water for hydropower and tourism.147 Climate change interacts with a
range of other causes of water stressors, such as population growth, environmental
degradation, poor water management, poverty and inequality.148
59.
Shortages of water have disproportionate impacts on children, particularly the poor.149
Due to likely financial problems and lack of access to the public environment, persons
with disabilities, who already face barriers in accessing safe water for drinking, hygiene
and sanitation, including related facilities, will be negatively impacted.150 The
availability and access to water will be adversely impacted by climate change. Women
138
African Commission Guidelines on the Right to Water in Africa, para 31.
Nairobi Guidelines (n 495), para 88.
140
‘United Nations General Comment No. 15: The right to water, arts 11 and 12’ (2000) para 1 (United Nations
General Comment No. 15).
141
United Nations General Comment No. 15 (n 524) para 12(a).
142
United Nations General Comment No. 15 (n 524) para 12(b).
143
United Nations General Comment No. 15 (n 524) para 12(c).
144
Free Legal Assistance Group and Others v Zaire (2000) AHRLR 74 (ACHPR 1995) para 47; also see Sudan Human
Rights Organisation & Another v Sudan (2009) AHRLR 153 (ACHPR 2009) (Sudan) para 207
145
C Toulmin Climate change in Africa (2009) 40.
146
See IPCC AR4 Synthesis Report 48-49.
147
AR 6(n 3) Box 9.4 p 1343; Box 9.5.1 p 1349.
148
UNDP Human Development Report 2006 (UNDP 2006).
149
OHCHR climate change and children study report (n 251) para 13.
150
OHCHR persons with disabilities study report (n 349) para 18; see J Twigg and others Disability and climate
resilience: a literature review’ (Disability and Climate Resilience Research Project 2017).
139
28 | P a g e
will experience these effects on the water sector due to the social role of women and
girls in society as the main providers of food, who travel long distances to provide
water for domestic use.151 The situation is experienced by the Youth who often fulfil a
similar responsibility at home in Africa.152 Inadequate water and sanitation services
due to the impact of climate change on the rights of older persons may expose them to
further significant health risks.153 Older persons are particularly likely to suffer
dehydration and infectious diseases associated with poor sanitation,154 and lack of
access to safe water associated with displacement, inclusive of one linked to climate
change, may negatively impact the health of the displaced.155
60.
Climate change, thus, poses a threat to the right to water impliedly guaranteed under
Article 16(1) of the African Charter, Article 14(2)(2) of the ACRWC, Article 15 of the
Maputo Protocol, the Older Persons Protocol,156Article 20(1) of the Persons with
Disabilities Protocol,157 Article 9(2)(b) of the Kampala Convention,158 and impliedly
in Article 14(3)(b) African Youth Charter.159
3.3.6. Right to Health
61.
Article 16 of the African Charter guarantees the right to enjoy the best attainable state
of physical and mental health and that States must ensure that everyone has access to
medical care. The right to health is also safeguarded under Article 14 (1) of the Maputo
Protocol, Article 14(1) of the ACRWC, Article 15 of the Older Persons Protocol,160
Article 20(1) of the Persons with Disabilities Protocol,161 Article 9(2)(b) of the
Kampala Convention,162 and Article 16 of the African Youth Charter.163
62.
The normative standard on the right to health has been substantially developed by the
African Commission.164 In 2008, the African Commission adopted two important
151
WEDO Gender and Climate Change: A Closer Look at Existing Evidence (2016).
UNESCO Youth and water security in Africa (UNESCO 2022).
153
OHCHR Older persons study report (n 333) para 25.
154
HelpAge International ‘Climate change in an ageing world’ (2015) 5; OHCHR Older persons study report (n
333) para 25.
155
OHCHR ‘Handbook for the Protection of Internally Displaced Persons’ available at
https://www.unhcr.org/4794b5d32.pdf (accessed 12 December 2022).
156
Preambular provision of the Older Persons Protocol (n 40).
157
Article 20 (1) of Persons with Disabilities Protocol (n 41).
158
Article 9(2)(b) of the Kampala Convention (n 36).
159
Article 14(2) of the African Youth Charter (n 43).
160
Article 15 of the Older Persons Protocol (n 40).
161
Article 20 (1) of Persons with Disabilities Protocol (n 41).
162
Article 9(2)(b) of the Kampala Convention (n 36).
163
Article 16 of the African Youth Charter (n 43).
164
E Durojaye ‘An analysis of the contribution of the African human rights system to the understanding of the right
to health’ (2021) 21 African Human Rights Law Journal 751.
152
29 | P a g e
resolutions in relation to the right to health. The first resolution deals with maternal
mortality, which is a serious challenge facing the region.165 In that resolution, the
African Commission declared maternal mortality a state of emergency in Africa and
called on states to take decisive measures to address this concern.166 In the same year,
the African Commission adopted another resolution to address access to medicines in
Africa.167 In its General Comment No. 2 on other provisions of Article 14 of the
Women's Protocol, the African Commission reasons that states are to ensure access to
healthcare services on a non-discriminatory basis and in ways that are physically and
economically accessible, and in such a manner that makes information accessible.168
The Commission explains the relevance of equality and non-discrimination to the
sexual and reproductive health rights of women.169 In Free Legal Assistance Group &
Others v Zaire, the African Commission made an important connection between the
social determinants of health and the right to health. It noted that a failure by the state
to provide basic services such as potable water, electricity and essential medicines
constituted a violation of the right to health in Article 16 of the African Charter.170
CESCR General Comment No. 14 on the right to the highest attainable standard of
health affirms that health is a fundamental human right crucial for the exercise of other
human rights.171
63.
An increase in temperature above the global average for Africa is affecting the health
status of millions of its population. In Central Africa, due to a change in climate, a
higher incidence of malaria has been reported.172 The health impacts of climate change
disproportionately affect people with the lowest incomes and, in some cases, impacts
differ by gender and age.173 The most vulnerable are young children (below 5 years),
the elderly (over 65 years), pregnant women, individuals with pre-existing illness,
physical labourers and people living in poverty.174 In Southern Africa, it was found that
human-induced climate change was responsible for almost 44% of heat-related deaths
in South Africa (1991–2018). 175 Malaria outbreaks in East Africa have been linked to
African Commission ‘Resolution on Maternal Mortality in Africa’ reproduced in E Durojaye & G MirugiMukundi (eds) Compendium of documents and cases on the right to health under the African human rights
system (2013).
166
As above.
167
African Commission ‘Resolution 141 on Access to Health and Needed Medicines in Africa ACHPR/Res
141(XXXXIV)08.
168
African Commission ‘General Comment 2 on arts 14(1)(a), (b), (c) and (f) and arts 14(2) (a) and (c) of the
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa’ adopted by the
African Commission on Human and Peoples' Rights during its 54th ordinary session, November 2014.
169
As above.
170
Free Legal Assistance Group (n 528), para 132.
171
CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) adopted at
the Twenty-second Session of the Committee on Economic, Social and Cultural Rights, on 11 August 2000
E/C.12/2000/4.
172
AR 6(n 3) section 9.10.2.1.1.
173
AR 6(n 3) section 9.10.1.
174
See generally AR 6 (n 3) section 9.10.
175
AR 6 (n 3) section 9.10.2, Fig. 9.35, p 1378.
165
30 | P a g e
both moderate monthly rainfall and extreme flooding (over the previous 10-year period
between January 2006 and December 2015). 176 Illnesses reported among the
pastoralists in the Turkana County of Kenya have been associated with warmer
weather, with increasing episodes of malaria.177 In Northern Africa, warmer and longer
summers, more frequent and extreme heat waves, and changed precipitation are being
experienced with negative health consequences for the inhabitants in that region.
Climatic changes impact health directly through severe heat, drought, and storms.178
.
64.
Climate change limits women’s access to sexual and reproductive health services in
that climate change-related human mobility can lead to reduced access to these
services.179 Extreme weather events, which are increasing in frequency and intensity
because of climate change, can damage essential infrastructure and otherwise
contribute to a decrease in the quality, availability and accessibility of sexual and
reproductive health services.180
65.
Children are more susceptible than adults to many vector-borne and infectious diseases
in the aftermath of climate change-related floods and storms.181 A UNICEF report with
a focus on Africa emphasises how children are biologically less equipped to manage
the effects of shocks such as water scarcity, vector-borne diseases, and flooding, whose
frequency and intensity are increasing because of climate change.182 According to the
report, children in 39 out of 49 African countries for which data is available fall under
'extremely high' or 'high' risk categories.183
66.
Due to reasons including physical and social challenges inhibiting access to
interventions, persons with disabilities are disproportionately affected by the adverse
impacts of disasters.184 They are at greater risk of further harm and death due to their
general exclusion from disaster risk reduction interventions.185 Older persons, in
AR 6 (n 3) section 9.10.1, citing O Simple and others ‘Influence of Climatic Factors on Malaria Epidemic in
Gulu District, Northern Uganda: A 10-Year Retrospective Study’ (2018) Malaria Research and Treatment 1.
177
Human Rights Watch ‘There is No Time Left: Climate Change, Environmental Threats, and Human Rights in
Turkana County, Kenya’ (2015).
178
RA Rayan and others ‘Climate Change Impacts on North Africa: Public Health Perspectives Climate Change in
the Mediterranean and Middle Eastern Region’ in W Leal Filho and E Manolas (eds) Climate Change in the
Mediterranean and Middle Eastern Region. Climate Change Climate Change in the Mediterranean and Middle
Eastern Region (Springer 2022) 457-471.
179
C Sorensen and others ‘Climate change and women’s health: impacts and policy directions’ available at
https://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.1002603#sec003 (accessed 10 January
2023).
180
WHO ‘Integrating sexual and reproductive health into health emergency and disaster risk management’ available
at www.who.int/reproductivehealth/publications/emergencies/rhr-12-32/en (accessed 10 January 2023).
181
OHCHR climate change and children study report (n 251), para 16.
182
UNICEF Time to Act: African children in the climate change spotlight September 2023.
183
As above.
184
United Nations Department of Economic and Social Affairs Disability and Development Report 2018 (UN 2019)
15.
185
OHCHR persons with disabilities study report (n 349)), para 10.
176
31 | P a g e
particular women, are the most likely to die from heat exposure, during heatwaves and
extreme cold weather or winter storms, and in hurricanes and other natural hazards.186
Lack of access to adequate shelter, sanitation, food, and safe water associated with
displacement, including one linked to climate change, may negatively impact on the
health of the displaced.187 Diseases linked to an increase in temperature and
occurrences such as climate-associated disasters will erode economic opportunities of
youth and negatively impact on the quality of their health.188
67.
The considerable threat that climate change poses to individuals, communities and
humanity is potentially traumatic and profoundly stressful, which, in turn, can lead to
negative mental health consequences. The negative mental health impacts arise from
exposure to direct, remote, projected, and incremental stressors and threats to life,
which impact on the severity and frequency of stress-induced and post-traumatic
experiences, such as depression, anxiety, and post-traumatic stress and can exacerbate
pre-existing mental health conditions.189 Some stressors are also related to the social
conditions associated with climate change, such as poor health, food insecurity,
financial insecurity, interpersonal violence, identity disruptions, and loss.190 These
potentially traumatic and stressful psychological experiences have been termed many
names, such as ‘climate trauma,’ ‘climate anxiety,’ and ‘ecological grief,’ among other
terms.191
68.
What they all have in common is the basic fact that climate change is negatively
affecting mental health outcomes. As climate change increases in severity, the public
becomes more aware of the possible climate realities and their direct harm and
adversities.
69.
Consequently, climate change threatens Article 16 of the African Charter, Article 14
(1) of the Maputo Protocol, Article 14(1) of the ACRWC, Article 15 of the Older
Persons Protocol,192 Article 20(1) of the Persons with Disabilities Protocol,193 Article
9(2)(b) of the Kampala Convention,194 and Article 16 of the African Youth Charter.195
GA Perez ‘The impacts of climate change take a heavier toll on older women’ Ageing Today, (March–April
2018).
187
OHCHR
Handbook for the Protection of Internally Displaced Persons available at
https://www.unhcr.org/4794b5d32.pdf (accessed 13 January 2023).
188
N Hako ‘Survival of the fittest: What does climate change mean for the future of South Africa's youth?’ 05 Oct
2021 available at https://www.news24.com/parent/family/health/survival-of-the-fittest-what-does-climate-changemean-for-the-future-of-south-africas-youth-20210930 (accessed 13 January 2023).
189
EL Lawrance and others ‘The Impact of Climate Change on Mental Health and Emotional Wellbeing: A
Narrative Review of Current Evidence, and its Implications’ (2022) 34(5) International Review of Psychiatry 443.
190
S Akerkar and M Fordham ‘Gender, place and mental health recovery in disasters: Addressing issues of equality
and difference’ (2017) 23 International Journal of Disaster Risk Reduction 218.
191
Lawrance and others (n 573).
192
Article 15 of the Older Persons Protocol (n 40).
193
Article 20 (1) of Persons with Disabilities Protocol (n 41).
194
Article 9(2)(b) of the Kampala Convention (n 36).
195
Article 16 of the African Youth Charter (n 43).
186
32 | P a g e
3.3.7. Right to Housing
70.
The African Charter is silent on the right to adequate housing. To fill this gap, in the
Ogoniland case, the African Commission stated that the combined effect of Articles
14, 16 and 18(1) constitutes a right to shelter or housing.196 It went further to assert that
‘the right to adequate housing as implicitly protected in the Charter also encompasses
the right to protection against forced evictions’.197 Article 20(2)(a) of the ACRWC
requires that States parties take ‘appropriate measures’, towards the provision of
housing. A similar provision is found in Article 16 of the Maputo Protocol, Article
20(1) of the Persons with Disabilities Protocol, Article 9(2)(b) of the Kampala
Convention, and is reflected in the preambular provision of the Older Persons Protocol,
and implicitly under Article 14(3) of the Youth Charter on the duty of states to provide
social security when right to housing of youth is undermined.
71.
General Comment No 4 of the ICESCR enunciates the seven elements constituting the
normative content of the right to adequate housing.198 These are legal security of tenure,
availability of services, materials, facilities and infrastructure, accessibility, location,
affordability, habitability, and cultural adequacy.199 General Comment No. 4 is further
strengthened by a subsequent General Comment No 7 on the right to housing, which
deals with the issue of forced evictions, 200 defined as: ‘[p]ermanent or temporary
removal against their will of individuals, families and/or communities from the homes
and/or land which they occupy, without the provision of, and access to, appropriate
forms of legal or other protection’.201
72.
ACHPR Principles and Guidelines on the Implementation of Economic, Social and
Cultural Rights in the African Charter on Human and Peoples’ Rights defines the right
to adequate housing as including ‘access to natural and common resources’202 and
affirms legal security of tenure as a minimum core obligation of the right to adequate
housing.203 The challenge posed by forced eviction to the enjoyment of right to housing
is highlighted by the Nairobi Guidelines which defines forced evictions as ‘acts and/or
omissions involving the coerced or involuntary displacement of individuals, groups and
196
Ogoniland case (n 490), para 60.
Ogoniland case (n 490), para 63.
198
United Nations General Comment No. 4: The right to adequate housing, art 11 (1) of the Covenant (1991) 6th
session (United Nations General Comment No. 4).
199
United Nations General Comment No. 4 (n 582), para 8.
200
‘United Nations General Comment No. 7: The right to adequate housing, art 11 (1) of the Covenant: Forced
evictions’ (1997) 16th session (United Nations General Comment No. 7).
201
United Nations General Comment No. 7 (n 584), para 3.
202
ACHPR Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human
and Peoples' Rights, adopted Oct 24, 2011 (ACHPR Guidelines and Principles on ESCR) para. 78.
203
ACHPR Guidelines and Principles on ESCR (n 586) para. 79 b.
197
33 | P a g e
communities from homes and/or lands and common property resources that were
occupied or depended upon, thus eliminating or limiting the ability of an individual,
group or community to reside or work in a particular dwelling, residence or location,
without the provision of, and access to, appropriate forms of legal or other
protection’.204 With respect to the right to property, the Nairobi Guidelines stipulate
that states have obligations to ensure peaceful enjoyment of property and protection
from forced eviction.205 In explaining the minimum core obligations regarding the right
to housing, the Nairobi Guidelines prescribe that States have minimum core
obligations not to forcibly evict and ‘protect against forced evictions from home(s) and
land, including through legislation’.206
73.
Global warming generates problems, including heat waves, flooding, pollution and a
rise in sea level,207 which have implications for the right to housing. Sea level rise and
storm surges will have a direct impact on many coastal settlements.208 The erosion of
livelihoods, partly caused by climate change, is a factor in the increasing rural-to-urban
migration.209 In eastern Africa, for instance, informal housing of people living in
coastal or low-lying areas may be wiped away due to multiple climate hazards,
including floods, extreme heat and sea level rise.210 In 2018 and 2019, respectively,
over 2.6 million and 3.4 million new weather-related displacements occurred in Africa,
with East Africa (1,437,7000) and West Africa (798,000) being hotspots in 2018 due
to factors including climate-related disasters.211 In North Africa, major disasters linked
with sudden events occurred in Morocco, Libya and Algeria, with consequences that
include displacement.212
74.
The right to housing is both directly and indirectly affected by climate change. Extreme
climatic events may damage or destroy houses and displace populations. Also,
measures in response to climate change (which do not follow a human rights-based
approach and respect procedural rights) may result in forceful evictions and restrictions
on access and use of natural resources. This is incompatible with the enjoyment of the
right to housing under the African Charter and the minimum core obligations and the
legal security of tenure set out under the ACHPR principles and guidelines on the
implementation of ESCR rights in the African Charter. During emergencies,
environmental barriers may prevent persons with disabilities from accessing shelters
204
Nairobi Guidelines (n 495) para 1(a).
Nairobi Guidelines (n 495) para 55(a).
206
Nairobi Guidelines (n 495) para 79(a), b, d, m, q and z.
207
Toulmin (n 529) 87.
208
AR 4 Working Group II, April 2007 (n 9) 333.
209
UNGA ‘Adequate housing as a component of the right to an adequate standard of living’ A/63/275, paras. 3138.
210
AR 6 (n 3) Table 9.2., p 1302.
211
AR 6(n 3) Box 9.8., p 1391; Table Box 9.8.1, p 1392.
212
K Kyungmee and TF Garcia ‘Climate Change and Violent Conflict in the Middle East and North Africa’ (2023)
25(4) International Studies Review viad053.
205
34 | P a g e
and safe spaces.213 Climate extreme events linked to disaster may degenerate situation
of women whose needs may be ignored due to stereotypes that men are the household
heads.214 It may have similar impacts on children.215 Climate change also significantly
affects the homes in which older people live. Older people are more likely to live in
homes with insufficient heating and cooling systems that do not respond to new
temperature extremes or that are less energy efficient.216 Displaced persons often suffer
a lack of access to adequate shelter due to removal from their familiar abode.217
Anxiety is associated with loss of housing; hence, the health of all these groups, in
particular, the youth, can be endangered due to anxiety associated with extreme climate
events.218
75.
Climate change undermines the right to housing provisions under the African Charter,
Article 20(2)(a) of the ACRWC, Article 16 of the Maputo Protocol, Article 20(1) of
the Persons with Disabilities Protocol, and Article 9(2)(b) of the Kampala Convention.
It is incompatible with the preambular provision of the Older Persons Protocol and will
trigger the application of Article 14(3) of the African Youth Charter.
3.3.8. Right to Education
76.
Article 17(1) of the African Charter guarantees for every individual the right to
education. The right is also safeguarded by Article 11 of the ACRWC, Article 13(1) of
the African Youth Charter, Article 9(2)(b) of the Kampala Convention, Article 12 of
the Maputo Protocol, Article 16(1) of the Persons with Disabilities Protocol, and
Article 16 of the Older Persons Protocol.
77.
In terms of the Nairobi Guidelines, education is an essential right that affects the
growth, development and welfare of human beings, especially children and youth. It is
the central medium of lifting marginalised children and adults out of poverty and
empowering them for full participation in community life. It is a channel for
empowering women, safeguarding children from all forms of exploitation, promoting
human rights and democracy, protecting the environment, and managing population
growth.219 In Resolution 346(LVIII) of 2016, the African Commission on the right to
education in Africa expressed the concern that ‘many children, particularly girls,
OHCHR Women study report (n 325) para 15; CBM ‘Saving lives and leaving no one behind. The Gaibandha
model for disability-inclusive disaster risk reduction’(2018).
214
G Haq, J Whitelegg and M Kohler ‘Growing Old in a Changing Climate’ (SEI Project 2018) 6.
215
As above
216
As above.
217
OHCHR Handbook for the Protection of Internally Displaced Persons available at
https://www.unhcr.org/4794b5d32.pdf (accessed 20 December 2022).
218
C Hickman and others ‘Climate anxiety in children and young people and their beliefs about government
responses to climate change: a global survey’ (2021) 5 Lancet Planet Health. e863-e873.
219
Nairobi Guidelines (n 495), paras 68-71.
213
35 | P a g e
vulnerable children such as children with disabilities, refugee children, migrant
children, street children, internally displaced children, girls who abandon school as a
result of pregnancy, and children from marginalised communities have not been given
equal opportunity’ to education. 220 The CESCR General Comment No. 13 on the Right
to Education (Art. 13) affirms the essential and interrelated features of the right to
education as: Availability, Accessibility. Acceptability and Adaptability. 221
78.
In several parts of Africa, education is threatened by the destruction of educational
facilities by climate-linked events such as flooding, which in many cases also hinders
affected communities from accessing available educational facilities.222 Where bad
weather reduces income in agriculture-dependent households, adults may withdraw
children from school. Poor harvests or interruptions in food supply associated with
extreme weather may result in undernourishment in young children, which may
negatively affect their cognitive development and schooling potential.223 Girls are more
likely to be withdrawn from school to perform household chores, such as eldercare,
fetching water and cooking, when households are affected by climate change
stresses.224In Uganda, for instance, low rainfall reduced primary school enrolment by
5% for girls.225 Displacement associated with climate impacts also has a negative
impact on the availability and accessibility of education for displaced children and
youth. Generally, extreme weather events and conflicts induced by climatic sudden or
slow onset events will affect the access of youth, women, persons with disabilities,
older persons, and the displaced in Africa to educational facilities.
79.
In Africa, climate change threatens the realisation of Article 17(1) of the African
Charter, Article 11 of the ACRWC, Article 13(1) of the African Youth Charter, Article
9(2)(b) of the Kampala Convention, Article 12 of the Maputo Protocol, Article 16(1)
of the Persons with Disabilities Protocol, Article 16 of the Older Persons Protocol.
3.3.9. Right to Property
80.
Article 14 of the African Charter guarantees the right to property, providing that it can
be limited only in the interest of public policy and in accordance with the provisions of
the law. Property has featured in a number of provisions of the Maputo Protocol: it is
embodied in Article 6(J) as the right of a woman to own and manage her property
while married; in Article 7(d) as the right of a woman to equitable sharing of property
ACHPR ‘346 Resolution on the Right to Education in Africa’ ACHPR/Res.346(LVIII) 2016.
CESCR General Comment No. 13: The Right to Education (Art. 13) Adopted at the Twenty-first Session of the
Committee on Economic, Social and Cultural Rights, on 8 December 1999, E/C.12/1999/10).
222
A Kutywayo and others ‘Climate change knowledge, concerns and experiences in secondary school learners in
South Africa’ (2022) 14(1) Jàmbá: Journal of Disaster Risk Studies a1162.
223
AR 6(n 3) section 9.11.1.2.
224
Global Gender and Climate Alliance, Gender and Climate Change: A Closer Look at Existing Evidence (2016)
17-18.
225
AR 6 (n 3) section 9.11.1.2.
220
221
36 | P a g e
upon divorce or annulment of marriage; Article 19(c) as a component of the right of
women to sustainable development which entails the promotion of their ‘access to and
control over productive resources such as land’ and their right to property. Also, Article
20(1) confers on a widow the right to an equitable share in the inheritance of the
property of her husband. It also features in Article 7(2)(g) of the Persons with
Disabilities Protocol, Article 9 of the Older Persons Protocol on the protection of older
women, Article 9(2)(i) of the Kampala Convention, Article 14(2)(c) of the African
Youth Charter, and impliedly under Article 6 of the ACRWC.
81.
The African Commission has been flexible on what constitutes the concept of
‘property’. For instance, in Malawi African Association and Others v Mauritania, land
was considered ‘property’ for the purposes of Article 14 of the African Charter.226 In
Centre for Minority Rights Development (Kenya) and Minority Rights Group (on
behalf of Endorois Welfare Council) (Endorois case), traditional land was regarded by
the African Commission as constituting ‘property’ under the Charter.227 The African
Commission’s Resolution 262 of 2013 on women's right to land and other productive
resources acknowledges that ‘women’s access to, control over and use of land and
productive resources contribute to promoting gender equality and constitute a solid
basis for improving women’s social, political and economic status’.228 In George
Iyanyori Kajikabi v. The Arab Republic of Egypt, the Commission held that the
movable property and valuables of refugees also constituted property for purposes of
Article 14.229 There is no specific provision on the right of a child to property under
the ACRWC. However, in General Comment No 2 on Article 6 of the African Charter
on the Rights and Welfare of the Child, the ACERWC anticipates that such a right falls
within the meaning of Article 6 on name and nationality. According to the African
Committee, a well-functioning civil registration system is necessary to promote
children’s right to inherit parental property.230
82.
In the context of climate change, properties may arguably include items (animate and
inanimate objects) lost as a result of sudden and slow-onset events. These properties
may be directly affected by adverse consequences. Increased heat waves and drought
on land linked to climate change exist around most of Africa.231 The area of urban land
exposed to arid climate conditions will increase 700% between 2000 and 2030, even
without further climate change in Africa.232 These occurrences are often accompanied
by losses of property to owners and displacement. For groups in vulnerable situations,
such as women, children, and indigenous peoples, the occurrences not only undermine
226
Communication No 54/91, 61/91, 98/93, 164/97, 196/97, 210/98 Malawi African Association and Ors v Mauritania
[2000] ACHPR 19; (11 MAY 2000), para 128.
227
Endorois (n 279), para 187.
228
ACHPR ‘262 Resolution on Women’s Right to Land and Productive Resources, CHPR/Res.262(LIV)2013.
229
Communication 334/07, para 235.
230
General Comment No 2 on article 6 of the African Charter on the Rights and Welfare of the Child 16 April 2014.
231
AR 6 (n 3) section 9.5.1; figure 9.14 p 1322.
232
AR 6(n 3) sections 9.9.1, 9.9.2, 9.9.4; Box 9.8., p 1391.
37 | P a g e
their ownership and or use of property, as properties may have been rendered nonexistent or uninhabitable. It limits the access of such populations to means of
production.
83.
The right to property may also be affected indirectly by climate change through the
implementation of policies by states in response to climate change. The African Charter
allows certain restrictions to be imposed by states because most human rights are not
absolute, and in some cases, limits may need to be placed on one human right to protect
the enjoyment of other human rights. However, limitations on rights must be nondiscriminatory, determined by law, and necessary and proportionate to a legitimate
objective. In the Endorois case, the African Commission examined the absence of a
claw-back clause in Article 17 of the African Charter, reasoning that the drafters of
the Charter envisaged few circumstances where a limitation could be appropriate.233
Further, the African Commission asserted that, even if the right were subject to
limitations and the game reserve was a legitimate aim, Kenya's failure to secure a right
of access for the Endorois was neither proportionate nor justified, as their cultural
activities posed no harm to the reserve's ecosystem.234 It then concluded that, by
forcibly evicting the Endorois case from their ancestral lands and restricting their
ability to return, the respondent state ‘denied the community access to an integrated
system of beliefs, values, norms, mores, traditions and artefacts closely linked to access
to the Lake’, making it impossible for them to maintain practices central to their culture
and religion.235 Thus, while implementing climate response measures, restrictions or
limitations can be placed on the enjoyment of the right to property in the name of public
interest, a development that unduly dispossesses communities of their lands and access
to resources linked to property would be in violation of this right. Undue restrictions
on the right to traditional lands may additionally endanger the physical or cultural
survival of affected communities or individuals.
84.
Hence, climatic events can hinder the realisation of rights and measures relating to
property rights under Article 14 of the African Charter, Articles 6(J), 7(d) and 19(c),
and 20(1) of the Maputo Protocol. Also, it poses threat to Article 7(2)(g) of the Persons
with Disabilities Protocol, Article 9 of the Older Persons Protocol on the protection of
older women, Article 9(2)(i) of the Kampala Convention, Article 14(2)(c) of the
African Youth Charter, and impliedly Article 6 of the ACRWC.
3.3.10. Right to Social Security and Protection
233
Endorois (n 279), para 249.
As above.
235
Endorois (n 279), paras 173, 250.
234
38 | P a g e
85.
The right to social security, including social assistance, is of significance as an
intervention to climate change hazards faced in particular by groups in vulnerable
situations in Africa. In terms of the Nairobi Guidelines, the right to social security is of
central importance in guaranteeing human dignity for all persons when they are faced
with deprivations. Therefore, although the right to social security is not specifically
mentioned in the African Charter, it can be derived from a joint reading of a number of
rights guaranteed under the Charter including (but not limited to) the rights to life,
dignity, liberty, work, health, food, protection of the family and the right to the
protection of the aged and the disabled.236 In the Ogoni case, through a combined
reading of Articles 4 (life), 5 (dignity), 6 (liberty),15 (work), 16 (health), and 18
(protection of family, elderly and disabled),237 the African Commission recognised
social security rights as implicit in the African Charter.238 Article 13 of the ACRWC
provides for special measures to be put in place in response to the needs of handicapped
children.
86.
The right to social security has been specifically well formulated in a number of
protocols to the African Charter, with provisions of importance to climate change.
Article 3 of the Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Citizens to Social Protection and Social Security (Social Protection Protocol)
guarantees to everyone in the member state the right to social protection, while Article
4 deals with social insurance.239 The Social Protection Protocol has specific provisions
on social protection for specific groups, such as Article 7 (migrants, refugees, displaced
persons and stateless persons), Article 8 (women and girls), Article 10 (older persons),
Article 11 (children, adolescents and youth), and Article 12 (persons with disabilities).
87.
The need for the protection of these groups can be traced to their parent instruments.
For instance, Article 13(f) of the Maputo Protocol requires the establishment of a
system of protection and social insurance for women working in the informal sector
and awareness creation. Other relevant provisions are found in Article 20(2)(b) to (d)
of the Persons with Disabilities Protocol, Article 7 (social protection), Article 12
(support for older persons taking care of vulnerable children), Article 13 (older persons
with disabilities), Article 14 (care in conflict and disaster situation) and Article 15
(access to health services) of the Older Persons Protocol, Article 14(3) of the Youth
Charter which recognises the right of every young person to benefit from social security
including insurance. Article 9(2)(b) of the Kampala Convention accommodates
assistance and services in the context of internal displacement. ILO documents on the
right to social protection and security for workers, including the ILO Guidelines for a
just transition towards environmentally sustainable economies and societies for all
236
Endorois (n 279) paras 80-82; also see Udombana (n 489).
The clauses safeguard the rights to life, dignity, liberty, work, health, family protection, and the elderly and
disabled.
238
Ogoniland case (n 490) paras 63 and 64.
239
Social Security Protocol (n 42).
237
39 | P a g e
(ILO Just Transition Guidelines) and the Abidjan Declaration on the future of work of
the 14th African Regional ILO Meeting (Abidjan Declaration) and the ILO Africa
Regional Social Protection Strategy stress the importance of the right to social security.
For instance, the ILO Just Transition Guidelines require states to promote and ensure
social protection measures.240 In terms of the Abidjan Declaration, there is a need to
provide social assistance to a rapidly growing number of jobless persons.241 ILO Africa
Regional Social Protection Strategy reiterates that social protection is crucial for
inclusive growth, social justice and transformative change for the successful realisation
of SDGs. 242
88.
Climate change shocks and risks described in the preceding paragraphs threaten the
socio-economic development of populations, including the groups in vulnerable
situations and undermine their basic rights. It will necessitate the provision of wellresourced social protection as an intervention in Africa, in particular, to prevent
instances of maladaptation. The inadequacy or non-availability of such protection will
worsen the plight of vulnerable groups in the climate change context in Africa. A right
to social security is thus necessary to protect people from the worst impacts of climate
change.
3.3.11. The right to work
89.
The right to work provided for in Article 15 of the African Charter is among the rights
that faces threats as climate change affects various sectors of the economy. Employment
in the informal sector is especially impacted by climate change in that with rainfall deficit or
flooding, household incomes of workers reliant on the agricultural sector, casual labor and
informal sector trading will decrease. Such workers might subsequently resort to seeking
employment in urban areas in the absence of opportunities in the agricultural sector. This is
problematic as the urban labor market will likely not be adequate to absorb this influx in Africa.
As a result, many households are likely to continue to engage in negative coping strategies to
minimize food consumption gaps amid high staple food prices and limited purchasing power.243
Additionally, where migration is embarked upon as a climate adaptation strategy in Africa, the
lack of decent work options available locally and the resulting desperation for employment
contributes to making individuals more vulnerable to labor exploitation, including forced labor,
debt bondage and other forms of human trafficking.
90.
240
According to the 2023 ILO report titled ‘Chemicals and climate change in the world of work:
Implications for occupational safety and health,’ numerous health conditions suffered by
workers are linked to climate change, including cancers, cardiovascular disease, and respiratory
illness, and workers in low- and middle-income countries (LMIC) and outdoor workers in
ILO Guidelines for a just transition towards environmentally sustainable economies and societies for all Para 28
‘Appendix III – Implementation Plan supplementing the Abidjan Declaration adopted by the 14th African
Regional
Meeting’
available
at
https://webapps.ilo.org/wcmsp5/groups/public/---ed_norm/--relconf/documents/meetingdocument/wcms_768623.pdf (accessed 12 February 2023).
242
Africa Regional Social Protection Strategy, 2021-2025.
243
As above.
241
40 | P a g e
construction and agriculture sectors will be most vulnerable to the effects of climate change
and chemical use.244
91.
As climate change impacts worsen, resources and policymaking may be channeled to support
corporate interests, a development that may result in the erosion of fundamental worker rights,
including occupational safety, job security and health standards in Africa. This can also have
adverse impacts on the right to association, including formation of and participation in trade
union, which are critical for ensuring just transition for workers and for advancing a just climate
action in the context of work and employment.
3.3.12 Cultural Rights
92.
There is no formal definition of cultural rights but the term has been described as
embodying the protection of ‘the rights for each person, individually and in community
with others, as well as groups of people, to develop and express their humanity, their
world view and the meanings they give to their existence and their development
through, inter alia, values, beliefs, convictions, languages, knowledge and the arts,
institutions and ways of life’.245
93.
Article 17 of the African Charter provides for the right to education and especially
stipulates that every individual may freely take part in the cultural life of his
community., Article 22 (1) of the African Charter also provides that ‘all peoples shall
have the right to their economic, social and cultural development with due regard to
their freedom and identity and in the equal enjoyment of the common heritage of
mankind’. These provisions at least show that cultural rights are embodied in the
African Charter. While it is in the broader context of development, in the Endorois
case, the African Commission placed on the State the burden of ‘creating conditions
favourable to a people’s development’.246 It then held that Kenya is expected to ensure
that the Endorois are not excluded from the development process or benefits. In finding
against the state, the African Commission affirmed that the failure to provide suitable
land for grazing indicates a lack of regard for Indigenous Peoples' land use and
exclusion from the development process.247
94.
Article 27 (1) of the UDHR states that ‘everyone has the right freely to participate in
the cultural life of the community while Article 13 (c) of the UN Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW) refers to the
right to equal participation in cultural activities. Article 15(1)(a) of the ICESCR
provides for the right of everyone to take part in cultural life. In explaining the Article,
CESCR General Comment No. 21 on the right to take part in cultural life indicates that
ILO ‘Chemicals and climate change in the world of work: Impacts for occupational safety and health’
(ILO , 2023).
245
Report of the independent expert in the field of cultural rights, Ms. Farida Shaheed, submitted pursuant to
resolution 10/23 of the Human Rights Council, A/HRC/14/36, para 9.
246
Endorois (n 279), para 298.
247
As above.
244
41 | P a g e
‘the right to take part in cultural life can be characterised as a freedom. Ensuring this
right requires from the State party both abstention (i.e., noninterference with the
exercise of cultural practices and with access to cultural goods and services) and
positive action (ensuring preconditions for participation, facilitation and promotion of
cultural life, and access to and preservation of cultural goods)’.248
95.
Climate change has both direct and indirect negative impacts on the enjoyment of
cultural rights in Africa. By affecting the environment and natural resources of these
communities and as plants and animals used for food, healing, traditional practices or
sacred ceremonies become less available, climate change also threatens the cultural
identities of Indigenous peoples. Furthermore, it has serious impacts on heritage sites,
most of which can be found in the territories of these populations. A 2022 study on the
rising sea level identified that out of 284 sites studied, 56 (20%) are at risk. By 2050, it
is estimated that the count will increase significantly, exceeding nearly 200 sites.249
Implementation of climate change response measures may lead to the dispossession of
the lands of Indigenous Peoples, a development that will detach them from their
cultural heritages. Article 4(5) of the Kampala Convention provides that ‘States Parties
shall endeavour to protect communities with special attachment to, and dependency on
land due to their particular culture and spiritual values from being displaced from such
lands, except for compelling and overriding public interests’.
3.3.13. The Right to a Healthy Environment
96.
Article 24 of the African Charter guarantees that ‘all peoples shall have the right to a
general satisfactory environment favourable to their development’. This right focuses
on the protection and well-being of both peoples and their environment.250 The right to
a ‘generally satisfactory environment’ is expressly protected under Article 24 of the
African Charter and includes the individual and collective right to a ‘generally
satisfactory environment.’251
97.
The African Commission defined the scope of the right to a satisfactory environment
in the Ogoniland case, where it explained that States must: ‘take reasonable and other
measures to prevent pollution and ecological degradation, to promote conservation, and
to secure an ecologically sustainable development and use of natural resources.’252 The
right to a satisfactory environment under the African Charter thus references the
248
CESCR General comment No. 21 Right of everyone to take part in cultural life (art. 15, para 1(a), of the
International Covenant on Economic, Social and Cultural Rights), para 6.
249
ML Vousdoukas and others ‘African heritage sites threatened as sea-level rise accelerates’ (2022) 12 (3) Nature
Climate Change 256.
250
ACHPR ‘Background Study on the Operations of the Extractive Industries Sector in Africa and its Impacts on
the Realisation of Human and Peoples’ Rights under the African Charter on Human and Peoples’ Rights’, adopted
by the 69th Ordinary Session of the ACHPR, 51.
251
Article 24 of the African Charter; Ogoniland case (n 490)
252
Ogoniland case (n 490), para. 52.
42 | P a g e
customary international law ‘prevention principle’,253 whereby States must not harm
other States’ environment through their actions or omissions.254 The African Court on
Human and Peoples’ Rights (African Court) found that this duty explicitly includes the
prevention of harm from toxic waste. Aside from this, the Court in the Ligue Ivorienne
case considered that the State had a duty ‘not only to prevent the dumping of the waste
without putting in place the necessary conditions, but also to ensure full and effective
decontamination once the waste had been dumped.’255 In reaching this conclusion, the
Court relied on the Algiers Convention.256 In this sense, the Commission should
consider the relevant environmental Conventions the States have ratified in interpreting
the right to a satisfactory environment. It can be argued that the recognition of state
duties to protect the environment in the African Conservation Convention,257 or the
recognition of a duty of states, as well as individuals and possibly corporate entities in
many African constitutions,258 could be read as conferring rights to the environment or
allowing the extension of the actio popularis principle to the environment.259
98.
Article 18 (1) of the Maputo Protocol guarantees to every woman the right to a healthy
and sustainable environment, while Article 11 (2)(g) of the ACRWC provides that the
right to education of a child shall include the development of respect for the
environment. Article 3 (1) of the Revised Conservation Convention, dealing with
principles, stipulates that the right of peoples to a satisfactory environment favourable
to their development is crucial to the attainment of conservation. Article 19(2) of the
Youth Charter requires state parties to engage young people in protecting the natural
environment as the inheritors of the environment’. The right to a satisfactory
environment is also included in two-thirds of African constitutions, one-fourth of
which include a state or individual duty to care for the environment,260 and can be a
key aspect of the African response to climate change.261
J Brunnée ‘Harm Prevention’ in L Rajamani and J Peel (eds) The Oxford Handbook of International
Environmental Law (Oxford University Press 2021) 283.
254
E Cima ‘The Right to a Healthy Environment: Reconceptualizing Human Rights in the Face of Climate Change’
(2022) 31 Review of European, Comparative & International Environmental Law 38.
255
African Court, Ligue ivoirienne des droits de l'homme (LIDHO), Mouvement ivoirien des droits humains (MIDH)
and Fédération internationale pour les droits humains (FIDH) v. Ivory Coast, appl. no. 041/2016 (5 Sept. 2023)
para. 183.
256
Ligue Ivorienne case (n 636), para 181.
257
Conservation Convention (n 37).
258
While most African constitutions dealing with the matter impose a duty on the state, some either explicitly single
out ‘every citizen’ (for example preamble of the Constitution of Cameroon) or provide a broader duty that would
presumably be owed by individuals as well as corporate entities towards the environment (for example Burkina
Faso (Art. 29) ‘duty for all’; or Cape Verde (Art. 70) ‘everyone’).
259
AO Jegede ‘Shifting Lens: The Protection of Environment and Human Rights under the African Charter on
Human and Peoples’ Rights’ (2015) 23 South African Journal of Environmental Law & Policy 23.
260
C Heyns and W Kaguongo ‘Constitutional Human Rights Law in Africa’ (2002) 22 South African Journal on
Human Rights 673. Since this publication, some African countries have implemented constitutional reforms, which
will change the tally slightly. For example, the 2010 Constitution of Kenya which has more generous environmental
rights protections (see Arts. 69-72), whereas the Tunisia Constitution (2014) and Zambia (2016) were amended to
refer to climate change with the former also providing a state duty to guarantee a ‘healthy and balanced’ environment
in addition to making references to sustainable development and future generations.
261
Y Suedi and M Fall ‘Climate Change Litigation before the African Human Rights System: Prospects and Pitfalls’
(2023) Journal of Human Rights Practice 2 (discussing its potential to accommodate climate-related claims).
253
43 | P a g e
99.
State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter
relating to Extractive Industries, Human Rights and the Environment highlights that
Article 24 entails specific legal entitlements and protection whereby ‘people are first
and foremost entitled to protection from environmental degradation and pollution.’262
It additionally envisages that the right under article 24 entails conservation of the
environment. The Guidelines and Principles accordingly state that the right to
environment guarantees in this context, among others, that ‘people are provided with
the space (including the right to form community based associations) and the necessary
support not only to employ ecologically sustainable use of natural resources for their
development but also to conserve their environment.’263 It also states that ‘Article 24
requires that appropriate environmental risk assessments be undertaken.’
100.
In the Ogoniland case264 the African Commission asserts that a generally satisfactory
environment connotes ‘a clean and safe environment that is closely linked to economic
and social rights in so far as the environment affects the quality of life and safety of the
individual’.265 Although it has no specific section devoted to the right to a healthy
environment, the Principles and Guidelines on the Implementation of Economic,
Social, and Cultural Rights in the African Charter on Human and Peoples’ Rights
(ECOSOC Principles) reinforce the position.266 It presents a healthy environment as a
cross-cutting issue to be considered by states in the implementation of a number of
rights, including the right to health,267 the right to education,268 the right to housing,269
and the right to water and sanitation.270 General Comment 14 of the CESCR on the
Right to the Highest Attainable Standard of Health,271 includes a healthy environment
as a determinant of health,272 and calls for healthy occupational and environmental
conditions.273 In July 2022, the United Nations welcomed the recognition by the
General Assembly that a clean, healthy, and sustainable environment is a human right.
This recognition followed the UN Human Rights Council resolution 48/13, which
acknowledged the right in October 2021.274 As human rights and the environment are
interdependent, a clean, healthy and sustainable environment is necessary for the full
enjoyment of a wide range of human rights, such as the rights to life, health, food, water
and sanitation and development, among others. At the same time, the enjoyment of all
262
State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter relating to Extractive
Industries, Human Rights and the Environment, para 28 (Extractives Reporting Guidelines).
263
As above, para. 29.
264
Ogoniland case (n 490), para 52.
265
As above.
266
Principles and Guidelines on the Implementation of Economic, Social, and Cultural Rights in the African Charter
on Human and Peoples’ Rights (ACHPR ECOSOC Principles).
267
ACHPR ECOSOC Principles (n 647), paras 63, 67(j) & (q).
268
ACHPR ECOSOC Principles (n 647), para 71(f)(6).
269
ACHPR ECOSOC Principles (n 647), para 79(p).
270
ACHPR ECOSOC Principles (n 647), para 87.
271
CESCR General Comment No. 14 (n 555).
272
CESCR General Comment No. 14 (n 555), para 4.
273
CESCR General Comment No. 14 (n 555), para 11.
274
HRC ‘The human right to a clean, healthy and sustainable environment’ resolution adopted by the Human Rights
Council on 8 October 2021, A/HRC/RES/48/13.
44 | P a g e
human rights, including the procedural rights to information, participation and access
to justice, is of great importance to the protection of the environment.
101.
While the adoption of agroecological practices, combining local knowledge, traditional
products and innovation, could further the right to a clean, healthy and sustainable
environment,275 an increase in temperature across Africa above the global average
already has substantial negative effects on ecosystems and their goods and services.276
37% of changes in land use mapped in Africa’s vegetation cover are driven by climate
change and increased carbon dioxide, the remaining by direct land management.277
Vegetation changes affect animal species. For instance, bird, reptile and mammal
species that depend on grassland habitats become rarer, as woody plants spread.278
Climate change also poses a problem to the forest cover in Africa, which is regarded
as the second ‘lung’ of the planet, together with the Amazon.279 Changes in the climate
have had a large impact on freshwater ecosystems. Temperatures across North African
freshwater bodies rose by 0.1–0.4 °C in a decade, and by 0.4–0.6 °C per decade in Lake
Nassar in Egypt.280 Increases in temperature, changes in rainfall, and reduced wind
speed have altered the physical and chemical properties of inland water bodies,
affecting water quality and the productivity of algae, invertebrates and fish.281
102.
As a driver of ecosystem changes, along with overexploitation of resources and
pollution, climate change poses a challenge to peoples and groups' right to
environmental rights guaranteed within the instruments under the African human rights
system.
3.3.14. The Right to Freely Dispose of Wealth and Natural Resources,
and the Right to Development
103.
The African continent is home to enormous natural resources that are directly and
indirectly impacted by climate change and climate change responses. The continent,
for instance, has over 30% of the mineral wealth of the world.282 These resources are
at the heart of the tension between the exercise of two rights - the right to freely dispose
of wealth and natural resources and the right to development- and the global aspirations
to address climate change. The tension is whether African countries rich with fossil
fuels, including oil, gas and coal, should leave the resources in the ground to address
AO Akanmu and others ‘Agroecological techniques: adoption of safe and sustainable agricultural practices
among the smallholder farmers in Africa’ (2023) 7 Frontiers in Sustainable Food Systems.
276
AR 6 (n 3) section 9.6.1.1.
277
AR 6 (n 3) section 9.6.1.1; Figure 9.17, p 1334.
278
AR 6 (n 3) section 9.6.1.1.
279
TN Tongele ‘Human Ways of Life and Environmental Sustainability: Congo Basin Case Study’ (2021) 15
Journal of Civil Engineering and Architecture 547.
280
AR 6(n 3) Figure 9.17., p 1334.
281
AR 6 (n 3) section 9.6.1.3.
282
UNEP ‘Our work in Africa’ available at https://www.unep.org/regions/africa/our-work-africa (15 February
2023).
275
45 | P a g e
climate change or use them for energy progression. This is more so as Africa has energy
access/poverty challenges which require urgent attention. With respect to energy
poverty, it is estimated that over 600 million people lack access to modern energy, such
as electricity.283 The continent also still struggles with developmental challenges. For
instance, of the populations who are excessively affected by poverty, 62.8% of
extremely poor women live in Africa.284
104.
Article 21 (1) of the African Charter provides that ‘all peoples shall freely dispose of
their wealth and natural resources’. Natural resources as used in this provision include
‘all assets or minerals that constitute natural capital of a nation’, and ‘both the nonrenewable resources, including oil, gas and minerals and renewable resources, tangible
and intangible, including the sun, soil, water, wind, fauna and flora’.285 Article 22 (1)
of the African Charter asserts the right of all peoples to economic, social and cultural
development with consideration for their freedom and identity and in the equal
enjoyment of the common heritage of mankind. Article 22(2) affirms that states shall
have the duty, individually or collectively, to ensure the exercise of the right to
development. Article 18(2)(b) of the Maputo Protocol requires states to ‘promote
research and investment in new and renewable energy sources and appropriate
technologies’, while Article 19(f) entitles women to sustainable development which
requires, among others, ensuring that ‘the negative effects of globalisation and any
adverse effects of the implementation of trade and economic policies are reduced to the
minimum for women’. Article 11 (2)(g) of the ACRWC provides that the right to
education of a child shall include the development of respect for natural resources.
105.
Aspiration 1 of AU Agenda 2063 envisions ‘a prosperous continent, with the means
and resources to drive its own development, with sustainable and long-term
stewardship of its resources, underlining commitments for adaptation to climate
change’.286 Agenda 2063 affirms the need to act with a sense of urgency on climate
change and the environment.287 The measures to achieve that end include programmes
on climate change targeting women and youth, climate resilient agricultural
development program, sustainable forest management programmes, national
adaptation plans, systems and structures, and sustainable exploitation and management
of Africa’s diversity for the benefit of its people.288 The SDG 13 on climate action
places the need to address the climate crisis as critical to achieving the pursuit of global
H Tazvinga, O Dzobo and M Mapako ‘Towards sustainable energy system options for improving energy access
in Southern Africa’ (2020) 31(2) Journal of Energy in Southern Africa 59.
284
UN Women ‘Poverty deepens for women and girls, according to the latest projections’
01 Feb 2022 available at https://data.unwomen.org/features/poverty-deepens-women-and-girls-according-latestprojections#:~:text=62.8%25%20of%20extreme%20poor%20women,New%20Zealand)%20and%200.01%25%20
.
285
Extractives Reporting Guidelines (n 643) 12.
286
African Union Commission ‘Agenda 2063 Framework Document’ (2015) 29, 30 and 34-35 available at
https://www.nepad.org/publication/agenda-2063-framework-document (accessed 15 February 2023).
287
Agenda 2063 (n 93) para 72(f).
288
As above.
283
46 | P a g e
pursuit of development,289 while SDG 14, in stressing the significance of oceans, seas
and marine resources for sustainable development, stresses that oceans absorb about
30 per cent of the carbon dioxide that humans produce.
106.
The importance of critical minerals to the renewable energy transition has shown that
the energy transition is not incompatible with the global agenda to address climate
change. Among the minerals that are considered to be critical to renewable energy
transition are metals and semi-metals used in the manufacture of wind turbines, electric
cars, solar panels, and other high-tech applications, which are crucial for shifting to a
low-carbon economy.290 For instance, copper is essential for the use of electricity
throughout the energy system, and platinum is a key material in many clean energy
technologies and emissions control devices. Lithium, cobalt, and nickel provide
batteries with greater charging performance and higher energy density.291 Africa has
some of the highest stores of many of these crucial minerals worldwide and could
potentially benefit greatly from using these resources for transitioning to renewable
energy, as well as economic development by selling these minerals (or finished
products) to other states. However, illegal activities in the extractive sector for scarce
transition minerals and unsustainable dumping of electronic waste (e-waste) in
countries in Africa are potential human rights concerns in the pursuit of renewable
energies.292
107.
Undoubtedly, the energy transition is a direct response to the need to address climate
change, and it requires an immediate shift from fossil fuels to renewable energies.
Reducing or stopping the burning of fossil fuels has been spotlighted as the central
solution to addressing climate change because reliable data show that fossil fuels are
responsible for at least 75% of the global greenhouse gases, and nearly 90% of all
carbon dioxide emissions.293 The 2023 IPCC report spotlighted the need for immediate
and deep emissions reductions across all sectors. This would consequently require
reducing emissions by 43% by 2030, 60% by 2035 and reach net-zero in early 2050.294
108.
Presently, the AR6 estimates that in 2018, Africa contributed only 3% to global fossil
fuel industry CO2 emissions (consumption-based). However, this percentage is
UNDP ‘Goal 13: Climate action’ available at https://www.undp.org/content/undp/en/home/sustainabledevelopment-goals/goal-13-climate-action.html (accessed 16 December 2022).
290
VR Nalule Land Law and the Extractive Industries (London: Bloomsbury Publishing, 2021).
291
As above
292
See ‘Activists slam Europe for dumping on Africa’ – DW – 04/01/2022; ‘The Rich World's Electronic Waste,
Dumped in Ghana’ - Bloomberg; or ‘Electronic Marvels Turn into Dangerous Trash in East Africa’ - The New York
Times.
293
‘United Nations: Climate Action’ available at https://www.un.org/en/climatechange/science/causes-effectsclimatechange#:~:text=Fossil%20fuels%20%E2%80%93%20coal%2C%20oil%20and,of%20all%20carbon%20di
oxide%20emissions (accessed 15 February 2023).
294
IPCC ‘Summary for Policymakers’ (n 3) 1-34.
289
47 | P a g e
expected to increase as African economies grow.295 Reducing GHG emissions across
the full energy sector requires major transitions, including a substantial reduction in
overall fossil fuel use, the deployment of low-emission energy sources, the eventual
phasing out of fossil fuels, switching to alternative energy carriers, and energy
efficiency and conservation.296 States in Africa are already embarking on
decarbonising the energy sector as various sectors of the economy have become a
priority for many countries, including in Africa. This is in response to the need to
address climate change, as stipulated in the 2015 Paris Agreement and the UN SDG13,
which is focused on climate action. Specifically, this transformation is visible with the
introduction of new low-carbon technologies, which have, to some extent, made it
possible to embrace the energy transition. This is within the meaning of Article 21 of
the African Charter, where the term ‘natural resources’ does not only mean ‘nonrenewable energy sources’ but also ‘renewable resources, tangible and intangible,
including the sun, soil, water, wind, fauna and flora’.297 Kenya, for instance, currently
generates 45 per cent of its electricity from geothermal and 26 per cent from
hydropower and has secured funding from the Climate Investment Funds (CIF)
intended to ensure a transition to 100 per cent renewable by 2030.298
109.
Despite the fact that existing fossil fuel projects are already more than the climate can
withstand if the world is genuine in limiting global warming to 1.5º degrees Celsius or
even 2 degrees Celsius and preventing the very worst outcomes of climate
breakdown,299 the limitations on the development of fossil fuel, particularly in Africa,
need to be balanced with the enormous development needs of the continent, and cannot
and should not be at the expense of this heavy need. It should also be taken into account
that such a limitation is principally directed at those states that historically and currently
bear the most responsibility for GHG emissions.
110.
The African Commission Advisory Note suggests that the use of natural resources to
meet human development goals while simultaneously sustaining the ability of natural
systems to provide the natural resources and ecosystem services without undermining
the aspirations of future generations is crucial to the present and future survival of
Africa.300 Resolution 224(LI) of 2012 calls for the need to ensure respect for human
rights in all matters of natural resources exploration.301
OE Olubusoye & D Musa ‘Carbon emissions and economic growth in Africa: Are they related?’ (2020)8(1)
Cogent Economics & Finance 1.
296
IPCC Sixth Assessment Report: Mitigation (n 16) 32.
297
Extractives Reporting Guidelines (n 643) 12.
298
Climate Investment Funds ‘Press release Climate Investment Funds Endorses Kenya’s $70 million Plan for 100
percent Clean Energy’ (31 January 2024) https://www.cif.org/news/climate-investment-funds-endorses-kenyas-70million-plan-100-percent-clean-energy.
299
K Trout and others ‘Existing fossil fuel extraction would warm the world beyond 1.5 °C’ (2022) Environmental
Research Letters 17.
300
Advisory note to the African group in Geneva on the legally binding instrument to regulate in international
human rights law, the activities of transnational corporations and other business enterprises (legally binding
instrument).
301
Resolution on a Human Rights-Based Approach to Natural Resources Governance - CHPR/Res.224(LI)2012
295
48 | P a g e
111.
The right to development is an important right in the context of climate change. Article
22 of the Charter should also be read with Article 24, discussed above, which provides
the right to a satisfactory environment favourable to development. Thus, environmental
conditions, including preserving the climate system, are crucial for enabling the
realisation of the right to development. Aside from Article 22 (1) of the African
Charter, Article 1 of the Declaration on the Right to Development states that: ‘the right
to development is an inalienable human right by virtue of which every human person
and all peoples are entitled to participate in, contribute to and enjoy economic, social,
cultural and political development …’ Several targets established to achieve UNSDG
13 are of particular relevance to the right to development: (a) Target 13.1: Strengthen
resilience and adaptive capacity to climate-related hazards and natural disasters in all
countries; (b) Target 13.2: Integrate climate change measures into national policies,
strategies and planning; (c) Target 13.3: Improve education, awareness-raising and
human and institutional capacity on climate change mitigation, adaptation, impact
reduction and early warning.302 The Rio Declaration in Principle 3 provides that ‘[t]he
right to development must be fulfilled to equitably meet developmental and
environmental needs of present and future generations’. It also provides in Principle 4
that ‘[i]n order to achieve sustainable development, environmental protection shall
constitute an integral part of the development process and cannot be considered in
isolation from it’. Because of these various interlinkages between the right to
development and environmental concerns, the right to development should be
understood as a right to sustainable development, which can only be achieved by
centering environmental concerns, in particular climate change, which threatens human
existence, in development decisions.
112.
A report by the UN Special Rapporteur on the Right to Development on climate action
argued that ‘none of the above targets can be effectively achieved without the informed
and active participation of the affected communities in all processes and at all levels of
decision-making with regard to the evaluation, planning, monitoring and
implementation of climate action’.303 There are examples in Africa where the right to
development action and the need for development are evident in climate legislation. At
the domestic level, a number of states in Africa are enacting and creating climate law
and policy in response to climate change. Examples of such laws and policies include
the Uganda National Climate Change Act of 2021, the Nigeria Climate Change Act of
2021, and the Namibia Climate Change Act No. 11 of 2016. Other states have
developed policies, including the Tanzania National Climate Change Strategy 20212026, the National Climate Change Management Policy, the Ghana National Climate
Change Policy 2013, the Morocco National Plan against Climate Change of 2019, the
Mali National Policy on Climate Change of 2011 and Zimbabwe National Climate
Policy of 2018, to mention a few. There have also been subregional action plans and
policy responses to the adverse consequences of climate change.304 The Climate
HRC ‘Climate action at the national level Report of the Special Rapporteur on the right to development’
A/HRC/48/56 General Assembly Distr.: General 2 July 2021, para 13.
303
As above.
304
As above.
302
49 | P a g e
Change Strategy and Action Plan of the Southern African Development Community
(SADC CCSAP) underlines the need to establish a standardised monitoring, evaluation
and reporting framework for climate change programmes.305 Similarly, the Climate
Change Policy Framework of the East African Community (EAC) emphasises
research, monitoring and forecasting.306 The Economic Community of West African
States (ECOWAS) adopted the Lomé Declaration on Climate Change and Protection
of Civilians in West Africa in 2009, calling for a human rights approach to climate
change.307
113.
In another report by the UN Special Rapporteur on the Right to Development, it has
been suggested that achieving the right to development requires a just transition away
from a carbon-based economy and towards one that is based on sustainable
development, the protection of human rights and the principle that no state is
excluded.308 The Special Rapporteur further found that nurturing diversified, ‘green’
economies with climate-resilient, sustainable development will not only strengthen the
right to development and adaptation in developing countries, but it will also enhance
global equity, permitting developing countries to become stronger partners in
mitigating climate change.309
114.
Policies and projects to address climate change can have indirect and unintended
impacts on human rights, including the right to development, if adequate safeguards
are not ensured in Africa.310
3.3.15. Right to Peace
115.
The right to peace is relevant to the study of the impact of climate change on human
rights, as conflict often ensues from scarcity of natural or environmental resources,
which sometimes results from climate change.311 Article 23 (1) of the African Charter
guarantees that ‘all peoples shall have the right to national and international peace and
security.’ In terms of Article 10(1) of the Maputo Protocol, ‘women have the right to a
SADC Secretariat ‘SADC climate strategy and action plan’ (2015) 35 available at
https://www.sadc.int/files/5615/9126/1263/SADC_Climate_Change_Strategy_and_Action_PlanEnglish.pdf (accessed 16 February 2023).
306
EAC Secretariat ‘EAC climate change strategy’ (2011-2016) and EAC Climate Change Master Plan (20112031)
available at https://www.eac.int/documents/category/environment-and-natural-resources (accessed 16 February
2023).
307
Pan African Climate Justice Alliance ‘ECOWAS region to launch its climate change strategy in COP26,’
available at https://www.pacja.org/using-joomla/extensions/components/content-component/list-all-categories/85news/249-ecowas-region-to-launch-its-climate-change-strategy-in-cop-26 (accessed 16 February 2023).
308
Right to development Note by the Secretary-General A/76/154 General Assembly Distr.: General 15 July 2021
(Note by the Secretary-General).
309
As above.
310
Note by the Secretary-General (n 690), para 11.
311
J Scheffran, PM Link and J Schilling ‘Climate and Conflict in Africa locked’ available at
https://doi.org/10.1093/acrefore/9780190228620.013.557 (accessed 20 February 2023).
305
50 | P a g e
peaceful existence and the right to participate in the promotion and maintenance of
peace’ while Article 10(2) stresses their participation in the education and building the
culture of peace in all structures and processes relating to ‘conflict prevention,
management and resolution at local, national, regional, continental and international
levels’. The right to peace is not expressly guaranteed under the ACRWC, but there are
provisions on armed conflicts which relate to the protection of children. This is
particularly the case with Articles 22 and 23 of the ACRWC relating to the protection
of children in armed conflicts and refugee children in Africa. The indication that armed
conflicts affect children shows that their well-being and security are best assured when
peace thrives. This thinking resonates with Agenda 2063 - silencing the guns as a
flagship project,312 a component of which is the pledge for peace.313
116.
There is growing evidence linking increased temperatures and drought to conflict risk
in Africa.314 Agriculturally dependent and politically excluded groups are especially
vulnerable to drought-associated conflict risk. However, the changing climate is one of
many interacting triggers of conflicts.315 The AU Peace and Security Council (PSC)
has made this link in a number of its previous decisions and pronouncements on climate
change, peace and security, and related themes, particularly through communique
PSC/AHG/COMM.1042 adopted at its 1043rd in October 2021, and communique
PSC/AHG/COMM.1 (CMLXXXIV) adopted at its 984th meeting held in March 2021.
In particular, in its communique PSC/PR/COMM.1051 adopted at its 1051st meeting
held on 26 November 2021 on the theme: Climate Change and Peace and Security, it
acknowledges the wide-ranging risks of climate change as a threat multiplier to the
peace and security landscape in Africa. It stresses its implications for ‘food and water
insecurity, loss of livelihoods, failure of management of natural resources, the climateinduced displacements, and possibly aggravating existing vulnerabilities, tensions and
conflicts’.316
117.
The African Union Transitional Justice Policy is conceived as a continental guideline
for states with histories of violent conflicts and systemic or flagrant violations of human
and peoples’ rights to advance context-specific comprehensive policies, strategies and
programmes for achieving democratic and socio-economic transformation, and
attaining sustainable peace, justice, reconciliation, social cohesion and healing.317
Since climate change both drives conflict in the region and exacerbates the effects of
conflict, this policy provides another tool and set of benchmarks for addressing climate
impacts and harms.
118.
There have been resolutions of the United Nations Security Council (UNSC)
indicating the intricate connection of climate change with conflict and instability in
AU ‘Silencing Gun’ available at https://au.int/flagships/silencing-guns-2020 (accessed 20 February 2023).
AU ‘My Pledge for Peace Campaign for Silencing the Guns’ available at https://au.int/en/videos/20201211/mypledge-peace-campaign-silencing-guns (accessed 20 February 2023).
314
AR 6(n 3) Box 9.9, p 1394.
315
As above.
316
Communique PSC/PR/COMM.1051 adopted at its 1051st meeting held on 26 November 2021.
317
African Union ‘Transitional Justice Policy’, adopted February 2019.
312
313
51 | P a g e
respect of other African states such as Somalia (S/RES/2408), (S/RES/2431),
(S/RES/2461), (S/RES/2472), (S/RES/2520), (S/RES/2540) and (S/RES/2568); Mali
(S/RES/2423) (S/RES/2480), (S/RES/2531) and (S/RES/2584); Sudan (S/RES/2429)
(S/RES/2524) and (S/RES/2579); Central African Republic (S/RES/2448),
(S/RES/2499) and (S/RES/2552), and Democratic Republic of the Congo
(S/RES/2502) and (S/RES/2556)). Regarding women in the context of climate related
conflicts, in its resolution S/RES/2242 of 2015, the UNSC notes ‘the changing global
context of peace and security, in particular relating to rising violent extremism, which
can be conducive to terrorism, the increased numbers of refugees and internally
displaced persons, the impacts of climate change and the global nature of health
pandemics’. It then reiterates ‘its intention to increase attention to women, peace and
security as a cross-cutting subject in all relevant thematic areas of work on its
agenda’.318
119.
Consequently, climate change poses a security risk in Africa and may undermine the
right to peace, especially under Article 23(1) of the African Charter.
3.3.16. Right to Self-determination
120.
Article 20(1) of the African Charter guarantees the rights of ‘all peoples to existence
and self-determination within which they can freely determine their political status and
pursue ‘their economic and social development according to the policy they have freely
chosen’. Climate change in cuasing loss of territory directly threatens the right to
existence of affected peoples and the exercise their right to self-determination.
121.
The right to self-determination is recognised in the common Articles 1 of the ICESCR
and ICCPR. Common Article 1, paragraph 1, of the ICESCR and the ICCPR establishes
that ‘all peoples have the right of self-determination’, by virtue of which ‘they freely
determine their political status and freely pursue their economic, social and cultural
development’. The right to self-determination is enshrined in Articles 1 and 55 of the
Charter of the United Nations, Article 1, paragraph 2 of the Declaration on the Right to
Development,319 and Articles 3 and 4 of the United Nations Declaration on the Rights
of Indigenous Peoples.320 An important element of the right to self-determination
includes the right of a people not to be deprived of their own means of subsistence.321
318
Resolution 2242 (2015), adopted by the Security Council at its 7533rd meeting, on 13 October 2015 S/RES/2242
(2015) recital, 2.
319
Declaration on the Right to Development: resolution / adopted by the General Assembly, 4 December
1986, A/RES/41/128.
320
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the General
Assembly on 13 September 2007.
321
Human Rights Committee, General Comment No. 12 (1984) on art. 1 (Right to self-determination), para. 6. See
also Committee on the Elimination of Racial Discrimination (CERD), General Recommendation 21 (1996) on the
right to self-determination; also see C169 - Indigenous and Tribal Peoples Convention, 1989 (No. 169), (Art. 6 und
7).
52 | P a g e
122.
The above provisions show that the normative content of the right to self-determination
ranges across political choice and the freedom to pursue economic, social and cultural
development. In the case of Gunme v Cameroon (Southern Cameroon case), the
applicants unsuccessfully urged the African Commission ‘to reaffirm the inherent,
unquestionable and inalienable right of the people of the Southern Cameroons to selfdetermination through secession.322 For Indigenous Peoples and minorities, the right to
free, prior, and informed consent (FPIC), as a well-established legal principle, is
derived from the right to self-determination. FPIC protects indigenous peoples and
minorities from the loss of their livelihoods, culture and identity by recognising their
right to give or withhold consent to proposed climate change mitigation and adaptation
plans (projects) that may affect the lands they traditionally own, occupy or otherwise
use.
123.
In Africa, sea level rise and extreme weather events related to climate change are
threatening the habitability and, in the longer term, the territorial existence of a number
of low-lying Island States and the territory of coastal communities.323 Equally, changes
in the climate threaten to deprive Indigenous Peoples and minorities of their traditional
territories and sources of livelihood, hence, their right to subsistence. These
developments bear direct implications for the right to self-determination under the
African Charter.
3.4 Impact of climate change on vulnerable groups
124.
In the context of climate change, vulnerability is not simply a function of the social,
political, economic and physical status of individuals and groups. It is also determined
by the extent to which the livelihoods and economic activities of individuals and groups
depend on climate, as well as the proximity of where people live to areas most
vulnerable to climate impacts. Given that those who depend on subsistence economic
activities for their survival such as agriculture, pastoralism and fishing are hugely
vulnerable to climate, consideration of the obligation of the state for special attention
to vulnerable groups should include communities that rely on subsistence farming,
fishing and pastoralism as well as people who live in territories threatened by sea
level rise and flooding induced by climate change as well as the urban and rural poor
who rely on the use of their labor on daily basis for earning their living.
3.4.1 Women and girls
125.
322
As clearly articulated in the Maputo Protocol, African women and girls face constraints
in access to and enjoyment of their human rights on an equal basis and suffer
Communication No 266/2003 Mgwanga Gunme v Cameroon [2009] ACHPR 99 (27 May 2009), paras 11, 182200
323
L Amusan & AO Jegede Adaptation in an era of vanishing territory – the political economy of the impact of
climate change versus total migration, status of statehood and refugees in Africa' (2014) 5 Environmental Economics
99-106.
53 | P a g e
discriminatory treatment that generally undermines their development due to their
societal role in a patriarchal world.324 For instance, due to gendered roles, women are
traditionally responsible for water collection and providing water for the household and
consequently suffer from more burdens than men325 in cases of climate-induced water
scarcity. Intersecting dynamics, such as being a member of a minority or indigenous
group or having a disability status, may compound the vulnerability of some women,
particularly when adequate social protection systems are lacking. Women also suffer
disproportionately when displaced by climate impacts due to the risk of sexual
violence.326 During displacement, women face more challenges as they become
exposed to violence and are more likely to have their reproductive rights ignored.
Women who migrate in the context of climate change can become targets of human
traffickers327 and end up in situations of severe exploitation, including debt-bondage.
126.
Despite the disproportionate impact of climate change on women and girls, genderresponsive measures, including reference to aspects of sexual and reproductive health
and rights, and their intersection with human rights, are not extensively reflected in
official documents such as the countries’ Nationally Determined Contributions (NDCs)
under the Paris Agreement.328 Also, women in Africa hardly participate in decisionmaking processes relating to the maintenance of a healthy environment.329
127.
The CEDAW Committee in General Recommendation No. 34 on the rights of rural
women calls upon states to address specific threats posed to rural women by climate
change, natural disasters and involve them in the full planning and implementation of
all policies concerning the environment, climate change, disaster risk reduction,
preparedness and management’.330 Also, the CEDAW Committee in General
Recommendation No. 39 on the rights of indigenous women and girls highlights that
climate change can threaten the rights of indigenous women and girls, especially the
right to food and water.
AO Jegede & N Mulaudzi ‘Article 19: Right to sustainable development’ in EA Rudman, T Makunya & C
Kabaseke (eds) Commentary on the Maputo Protocol (PULP 2022 forthcoming) chapter 21.
325
M Nordström & I Widman ‘Until I see that I have water, I am never free’: Gendered experiences of water scarcity
A case study from Gburimani, Northern Ghana 2022.
326
OHCHR Climate change exacerbates violence against women and girls available at
https://www.ohchr.org/en/stories/2022/07/climate-change-exacerbates-violence-against-women-andgirls#:~:text=It%20is%20estimated%20that%2080,High%20Commissioner%20for%20Human%20Rights
(accessed 17 February 2023), See also E Boshoff ‘Women’s Environmental Human Rights in Africa with
Reflections on Key Provisions of the Maputo Protocol’ in M Addaney & AO Jegede (eds.) Human Rights and the
Environment under African Union Law (2020) Palgrave Macmillan 107-136.
327
EC Cameron and others ‘Global Crises: Gendered Vulnerabilities of Structural Inequality, Environmental
Performance, and Modern Slavery’ (2021) 4 Human Arenas 391.
328
United Nations Population Fund (UNFPA). Sexual and Reproductive Health and Rights in National Climate
Policy: A Review of 50 Nationally Determined Contribution Documents; UNFPA: Johannesburg, South Africa,
2021.
329
OO Ilesanmi ‘Women’s visibility in decision making processes in Africa—Progress, challenges, and way
forward’ (2018) 3 (38) Frontiers in Sociology 1.
330
General recommendation No. 34 (n 244), para 12.
324
54 | P a g e
128.
However, the vulnerability of women to bear the disproportionate impact of climate
change does not fully represent the role of women in the context of climate change.
Women’s responsibilities in households and communities, as stewards of natural and
household resources, position them well to contribute to livelihood strategies adapted
to changing environmental realities.331 Hence, the OHCHR observed ‘women’s
participation at all levels of decision-making is critical for more effective climate
action’.332 The CEDAW Committee in General Recommendation No. 37 on genderrelated dimensions of disaster risk reduction in the context of climate change pointed
out that ‘the categorization of women and girls as passive ‘vulnerable groups’ in need
of protection from the impacts of disasters is a negative gender stereotype that fails to
recognize the important contributions of women in the areas of disaster risk reduction,
post-disaster management and climate change mitigation and adaptation strategies’.333
129.
The provisions of the Maputo Protocol are relevant to the experiences and the potential
of women to participate in the climate change context. For instance, Article 2(c) is
relevant to the integration of gender perspectives in climate policy decisions,
legislation, development plans, programmes, and activities. Article 4 on the right to
life, integrity and security of the person speaks to the threat that climate change poses
to women’s rights to life, integrity and security, while Article 4(k) is particularly
important in the context of women refugees.334 Article 8 of the Maputo Protocol
concerning access to justice and equal protection before the law is relevant when
defending land and natural resource rights of women in the context of climate change
responses. The provision of Article 9 on the right to participation in the political and
decision-making processes is crucial to treat women as ‘equal partners with men at all
levels of development and implementation of State policies and development
programmes’ dealing with climate change. Article 13, providing for economic and
social welfare rights, is relevant to social protection in the face of the adverse
consequences of climate change. Generally, as shall be demonstrated in more details in
this section, consequences of climate change threaten Article 14 on women’s right to
health, including reproductive health, Article 15 on rights to food security and water,
Article 16 on the right to adequate housing, Article 18 on the right to a healthy and
sustainable environment, and Article 19 on the right to sustainable development, among
others.
Women Watch ‘Gender perspectives on climate change’ Issues paper for interactive expert panel on Emerging
issues, trends and new approaches to issues affecting the situation of women or equality between women and men.
52nd
session
of
the
Commission
on
the
Status
of
Women
(2008)
available
at
http://www.un.org/womenwatch/daw/csw/csw52/issuespapers/Gender%20and%20climate%20change%20paper%
20final.pdf (accessed 17 February 2023).
332
OHCHR ‘Analytical Study on Gender-Responsive Climate Action for the Full and Effective Enjoyment of the
Rights of Women’ A/HRC/41/26 (1 May 2019),( OHCHR Women study report). para. 27.
333
CEDAW Committee, General Recommendation No. 37 on the Gender-related Dimensions of Disaster Risk
Reduction in the context of Climate Change, 13 March 2018, CEDAW/C/GC/37, para. 7.
334
Art 4 (k) provides that the state should ‘ensure that women and men enjoy equal rights in terms of access to
refugee status determination procedures and that women refugees are accorded the full protection and benefits
guaranteed under international refugee law, including their own identity and other documents’.
331
55 | P a g e
3.4.2 Children
130.
Children are disproportionately affected by changes in their environment, due to their
particular metabolism, physiology and developmental needs. Children have a limited
capacity to respond to climate change impacts and are particularly vulnerable to
them.335 In Africa, children are more severely affected where the physical and
ecological effects of climate change intersect with poor and vulnerable communities.336
131.
Changes in temperature, air and water quality and nutrition associated with climate
change have more severe and long-term impacts on children’s health, development and
well-being.337 Climate change has negatively impacted on children’s health globally
and also in Africa. Generally, according to WHO, 34% of all childhood illnesses in the
world and 36% of deaths in children under age 14 are due to environmental factors.338
In addition to the child deaths that can be caused by natural disasters, including the
disruption of healthcare services such as immunisation, climate change has created
fertile ground for diseases that are the primary causes of child morbidity and
mortality.339 These include vector-borne diseases, such as malaria, dengue and
schistosomiasis, water-borne diseases such as diarrhoea and cholera, and air-borne
diseases such as tuberculosis, asthma and allergies.340 Climatic factors were the driving
forces behind malaria, which accounted for 80% of deaths in children under 5 years in
some African countries.341
132.
Children’s education in Africa has been negatively impacted by the climate crisis in
multiple ways. Increasingly frequent and intense extreme weather events such as
storms, storm surges, hurricanes, (flash) floods, heat waves and droughts have
disrupted education services and children’s ability to access them.342 A study on Kenya
suggests that the impacts on children of slow-onset events, such as droughts, manifest
in the long term too: when children are removed from school to go to work to generate
additional household income, thereby ending up deprived of their right to education
and more vulnerable to exploitation. Lack of education can translate into loss of access
to key skills needed for the job market, and young adults may thus be forced to accept
exploitative working conditions to survive.343
UNICEF ‘Time to Act: African Children in the Climate Change Spotlight’ 2023.
UNICEF The Climate Crisis Climate Change Impacts, Trends and Vulnerabilities of Children in Sub Saharan
Africa (UNICEF 2020) (UNICEF Vulnerabilities of Children).
337
UNICEF’s Children’s Climate Risk Index (2021); PJ Landrigan and A Garg ‘Children are not little adults’ in J
Pronczuk-Garbino (ed) Children’s Health and the Environment: A Global Perspective (Geneva, WHO, 2005).
338
World Health Organization. The World Health Report 1996: Fighting Disease, Fostering Development; World
Health Organization: Geneva, Switzerland, 1996.
339
UNICEF ‘The climate-changed child: A children’s climate risk index supplement’ 2023.
340
As above.
341
L Filho and others ‘Climate change and malaria: some recent trends of malaria incidence rates and average annual
temperature in selected sub-Saharan African countries from 2000 to 2018’ (2023) 22 Malaria Journal 248.
342
X Yang & K Feng ‘Mapping the cumulative effects of climate change on children’s education in ten African
countries’ Global Education Monitoring Report 2022 GEM Report Fellowship 2023
343
RL Malinowski and M Shulze ‘Natural Disaster, Human Trafficking and Displacement in Kenya, Awareness
Against Human Trafficking ‘ (HAART, 2017).
335
336
56 | P a g e
133.
Emerging case studies in Africa show that climatic events such as drought lead to early
child and forced marriages due to a lack of means to feed and send girl children to
school.344 Evidence from UNICEF demonstrates that forced child marriage is on the
rise in the Horn of Africa: as droughts and climate change impacts intensify, reduced
livelihood opportunities and access to resources for survival push families to marry off
their daughters in exchange for a dowry or to reduce the burden of feeding too many
children.345 Girls also suffer the most during and after a climate disaster as the burden
of responsibility falls disproportionately on their shoulders.
134.
Climate change will disproportionately affect children in vulnerable situations,
including children with disabilities, indigenous children, and children of migrants. For
example, insufficient accessibility considerations in natural disaster evacuation,
response and relief efforts can make children with disabilities more susceptible to
injuries, while discrimination exposes them to risks of abuse, neglect and abandonment
in the event of climate shocks.346 Additionally, disproportionate impacts will be felt by
children living in geographically vulnerable areas, such as riparian and low-lying
coastal areas, arid regions, high mountains, polar zones and other delicate
ecosystems.347
135.
As pointed out by the African Committee of Experts on the Rights and Welfare of the
Child ‘multiple rights in the Charter are relevant for the purpose of addressing the
impact of climate change on children’s rights in Africa. These include articles 1
(obligations of State Parties), 3 (non-discrimination), 4 (best interests), 5 (right to life,
survival, and development), 6 (right to a name and nationality, and birth registration),
7 and 4(2) (right to express views), 11 (right to education), 13 (children with
disabilities), 14 (right to health), 20(2) (right to assistance or social protection), 23
(refugee children), 24 and 25 (family environment), 22, 27, and 29 (right to protection
from exploitation), and 31 (responsibilities of the child).’348
3.4.3 Persons in prison
136.
Globally, climate change poses significant risks to Persons living in Prisons (PLP), who
are particularly vulnerable due to their confinement and limited agency.349 Extreme
temperatures and climatic events, such as flooding, may damage prisons and increase
congestion, leading to unsafe and unsanitary detention conditions, hazardous heat
United Nations Women ‘Rural women tackle drought-affected Mozambique’s rise in child marriage’ (2017)
available at https://www.unwomen.org/en/news/stories/2017/11/feature-mozambique-ruralwomen-tackle-droughtrelated-rise-in-child-marriage (accessed 18 February 2023).
345
UNICEF ‘Child marriage on the rise in Horn of Africa as drought crisis intensifies’ Press Release, 2022.
346
OHCHR
‘Climate
change:
Protecting
the
rights
of
children’
available
at
https://www.ohchr.org/sites/default/files/Documents/Issues/ClimateChange/materials/2PChildrenLight.pdf
(accessed 20 February 2023).
347
As above.
348
ACERWC, Continental study on climate change and children's rights (2025) 21.
344
349 Sasikumar G, Van Hout MC and Plugge E "The impact of climate change on the health of people living in prison: a
global scoping review" (2026) Int J Prison Health
57 | P a g e
exposure, and increased morbidity and mortality among the PLP.350 Also, prisons
worldwide are frequently excluded from hazard risk management and disaster
mitigation planning, particularly in the aftermath of climate disasters.351 Hence, climate
change exacerbates existing challenges of incarceration, including overcrowding,
inadequate healthcare provision, pre-existing morbidity, poor sanitation, complete
reliance on the authorities when faced with extreme events and limited access to
resources.352 It, however, impacts negatively even more vulnerable groups in prison,
such as women (and their infants) and persons with chronic ill-health, differently in
prisons.353
137.
Many prisons in Africa still have colonial-era infrastructure, with limited ventilation and few
maintenance resources.354 The consequence of this reality is that storms, landslides, and floods
linked to climate change can cause significant damage to infrastructure and to the health and
safety of prisoners and staff.355 Also, climate change will worsen conditions for prisoners and
staff, especially because prison infrastructure is mostly poorly adapted to heat waves, requiring
increased ventilation, air conditioning, and access to sufficient, clean water to prevent
dehydration in Africa.356 Accordingly, the climate action strategies and policies of States
parties to the African Charter should take account of the needs of persons in prisons. The
implementation of measures for improving prison conditions including ACHPR Resolution
466 (2020) should also take account of the need for making prison infrastructure resilient to
the impacts of climate change.
3.4.4 Minorities and indigenous peoples
138.
Minorities and indigenous peoples in Africa are among the first to experience the direct
impacts of climate change, even though they contribute little to greenhouse gas
emissions, and are disproportionately affected.357 As pointed out in one analysis, there
are two reasons why minority and indigenous communities are more affected than
others as the world’s climate changes. ‘Firstly, because they have a close and unique
relationship with nature and often the entire community’s livelihood depends on the
environment. Secondly, these communities already live in poor, marginalised areas and
350 Cloud DH et al (2023) ‘ Extreme Heat and Suicide Watch Incidents among Incarcerated Men’ JAMA Network
Open 6(8): e2328380–e2328380; Tuholske C et al. ‘ Hazardous Heat Exposure Among Incarcerated People in the
United States’ (2024) 7 Nature Sustainability 394–8. https://doi.org/10.1038/s41893-024-01293-y
351 Penal Reform International. 2024. Global Prison Trends 2024. https://www.penalreform.org/global-prison-trends2024/
352 Nkambule E, Wella, K and Mbakaya, BC ‘ Voice of Incarcerated Male Youths in Malawi’s
Semi-Urban Prisons: A Qualitative Study.’ (2023) BMJ Open 13: e075925.
353 Van Hout MC et al ‘ Essential standards for perinatal care of women and children living in prison’ (2026) The
Lancet Public Health, Vol. 11 No. 3, doi: https://doi.org/10.1016/S2468-2667(25)00320-2
354 Muntingh L ‘ Africa, Prisons and COVID-19’ (2020) 12 (2) Journal of Human Rights Practice 284–92.
https://doi.org/10.1093/jhuman/huaa031; https://www.southernafricalitigationcentre.org/madagascar-prisoners-arethe-invisible-victims-of-the-environmental-crisis
355Claire Van Hout M et al ‘We Fear For Our Lives’: Understanding, Responding and Mitigating the Impact of
Climate Change on the Malawian Prison System’ (2025) 17(1) Journal of Human Rights Practice 140–153
356 ‘Chad inquiry finds 44 prisoners died in hot, overcrowded cell’ https://www.bbc.com/news/world-africa-53712951
357
United Nations Permanent Forum on Indigenous Issues: Backgrounder: Climate change and indigenous peoples,
UNPFII.
58 | P a g e
in some countries are already victims of state discrimination.’358 As a result, climate
change poses severe threats to their livelihoods, cultures, identities and ways of life.359
and even survival. Relatedly, climate risks also aggravate their existing socioeconomic
and overall vulnerability and marginalisation.360
139.
Minorities and indigenous peoples also face indirect impacts of climate change,
including most notably in the context of the implementation of certain climate change
response measures, such as carbon sinks. A study shows that of 34 Protected Areas in
five countries of the Congo Basin (Cameroon, Central African Republic, the
Democratic Republic of the Congo, Gabon and the Republic of the Congo), Indigenous
Peoples have virtually no tenure security over their traditional lands.361 The
militarisation of conservation has been documented in the Central African Republic,
the Democratic Republic of the Congo, and South Africa.362
140.
While minorities and Indigenous Peoples experience the consequences of climate
change, they may also play a unique role in addressing it. Globally, minorities and
Indigenous Peoples occupy nearly 2 billion hectares of land for diverse reasons (sacred
sites, critical resource areas, spring water, etc.).363 Using forests as a surrogate for
biodiversity, analyses show that community-owned forests and local rulemaking are
linked to lower carbon emissions.364 Studies show that community-managed forests in
Africa are more effective in reducing deforestation and emissions.365 Evidence shows
that Indigenous Peoples and minorities generally have strong ties to the lands and
forests they depend on, and many have developed locally adapted institutions that are
positively linked to high biodiversity in lands and freshwater systems managed by
them.366 However, much of their contributory effort goes unrecognised and
disrespected.
358
MRG, Voices that must be heard: Minorities and indigenous peoples combating climate change, 1, available at
https://minorityrights.org/app/uploads/2024/01/mrg-brief-climatec.pdf (accessed 20 February 2023).
359
AO Jegede The climate change regulatory framework and indigenous peoples’ lands in Africa: Human rights
implications (Pretoria University Law Press, 2016) (Jegede Climate regulatory framework); M Hansugunle & AO
Jegede The impact of climate change on indigenous peoples’ land tenure and use: The case for a regional policy in
Africa’ (2014) 21 (2) International Journal on Minority and Group Rights 256-291.
360
As above.
361
S Counsell ‘The Congo’s Nouabalé-Ndoki National Park: How Indigenous Lands Became an Emblem of
Rooseveltian ‘Wilderness Conservation’ in Africa’ available at www.corneredbyPAs.com/congo (accessed 25
February 2023).
362
W Annecke and M Masubele ‘ A review of the impact of militarization: The case of rhino poaching in Kruger
National Park, South Africa’ (2016) 14 (3) Conservation and Society 195.
363
V Tauli-Corpuz and others ‘Adopting rights-based approaches to enable cost-effective conservation and climate
action’ (2020) 130 World Development.
364
M Collins and E Mitchard ‘A small subset of PAs are a highly significant source of carbon emissions’(2017) 7
Scientific Reports 41902.
365
E Barrow and others ‘Who owns Africa's forests? Exploring the impacts of forest tenure reform on forest
ecosystems and livelihoods’ (2016) 25 Forests, Trees and Livelihoods 132-156.
366
S Stevens (ed) Indigenous peoples, national parks, and PAs: A new paradigm linking conservation, culture, and
rights (Tucson: University of Arizona Press, 2014).
59 | P a g e
141.
In addition to the Paris Agreement, the Kunming-Montreal Global Biodiversity
Framework explicitly reference the rights of Indigenous Peoples and emphasises the
important role they often play as custodians of biodiversity and partners in the
conservation, restoration and sustainable use in protecting the environment and as
custodians of Indigenous knowledge.367 The UN Declaration on the Rights of
Indigenous Peoples recognises the rights of Indigenous Peoples, including to their
lands, resources, and territories, and to maintain, control, develop and protect their
traditional knowledge, as well as their free, prior and informed consent, including
through their full and effective participation in decision-making.368 Studies have shown
that respecting, protecting and fulfilling these rights is one of the best measures to solve
Indigenous Peoples' plight and contribute to addressing climate change.369
3.4.5 Displaced Persons, migrants and refugees
142.
Climate change intersects with displaced persons and refugees in two ways. First,
displaced persons and refugees are among the categories of persons who stand to suffer
disproportionately from climate change. Second, climate change itself has increasingly
become a major source of displacement, leading to the cross-border movement of
migrants and refugees.
143.
In all regions of Africa, climate and weather extremes are increasingly driving
displacement, involuntary migration, refugee flows and perpetuating vulnerability.370
Displacement is set to increase with heavy precipitation and associated flooding,
tropical cyclones, drought and sea level rise.371 The World Bank estimates that 140
million people will be internally displaced by slow-onset climate change impacts by
2050.372 The United Nations High Commission for Refugees (UNHCR) notes that
climate change is a factor in the vulnerability of forcibly displaced persons,373 and
affirms that more populations in Africa are implicated in the global trajectory of
displacement.374
Conference of the Parties to the Convention on Biological Diversity Fifteenth meeting – Part II
Montreal, Canada, 7-19 December 2022 Agenda item 9A Kunming-Montreal Global Biodiversity Framework.
368
Declaration on the Rights of Indigenous People. 2007. (United Nations (General Assembly), 2007, art. 5).
369
Jegede Climate regulatory framework (n 282).
370
Global Report on Internal Displacement - GRID 2020; see AO Jegede ‘Rights away from home: Climate-induced
displacement of indigenous peoples and the extraterritorial application of the Kampala Convention (2016) 16(1)
African Human Rights Law Journal 58.
371
IDMC 2023 Internal Displacement and Food Security.
372
World Bank ‘Groundswell: Preparing for Internal Climate Migration’ (The World Bank 2018).
373
UNHCR ‘Conflict, violence, climate change drove displacement higher in first half of 2021’ available at
https://www.unhcr.org/news/press/2021/11/618bec6e4/unhcr-conflict-violence-climate-change-drovedisplacement-higher-first.html (accessed 25 February 2023).
374
As above.
367
60 | P a g e
144.
At the end of 2022, Internal displacements linked to climate disasters involved 32.6
million people.375 Some of the affected countries include Zimbabwe (Cyclone Idai)376
and South Sudan (increased temperatures and precipitation change linked with
conflict),377 where about 1.36 million people are displaced.378 This has resulted in loss
of lives and livelihood.379 Nearly 508,250 people have been displaced and at least 499
killed by the flooding following Tropical Cyclone Freddy as it made landfall in Malawi,
leaving a trail of destruction on livelihoods, houses and infrastructure in its wake.
380
Madagascar is bound to be affected by more seasonal weather events that trigger
displacement.381 More than 16,000 children are displaced following floods in Libya in
2023, according to UNICEF,382 while in Nigeria, a flood in 2022 displaced a total of
1,302,589 people.383 Livelihoods in the Horn of Africa have long evolved around
livestock’s grazing needs, but as seasonal variability turns into climate shocks,
traditional coping mechanisms have been exhausted, forcing farmers to move and some
pastoralists to become sedentary. The region faced its longest and most severe drought
on record in 2022.384
145.
The consequences of climate change, environmental degradation and disasters are
increasingly leading to cross-border displacement across several African countries,
including Angola, Mozambique, Chad, the Central African Republic (CAR), the
Democratic Republic of Congo (DRC), Malawi, Sudan, South Sudan, Somalia, and
Ethiopia.385 As of February 2023, the African region was home to 8.4 million forcibly
displaced people and refugees, housed in refugee camps and settlements or in urban
areas which host long-term refugee populations.386
146.
As elsewhere in the world, climate-induced displacement in Africa raises the issue as
to whether populations displaced across national borders can be deemed as ‘refugees’
for the purpose of international law protection. While arguments have been made in
IDMC ‘Displacement, disasters and climate change’ available at https://www.internal-displacement.org/focusareas/Displacement-disasters-and-climate-change/ (accessed 5 March 2023).
376
World Bank and others ‘Zimbabwe Rapid Impact and Needs Assessment (RINA)’ (2019) 69 – 70.
377
‘Climate, Peace and Security Fact Sheet: South Sudan - South Sudan’ (ReliefWeb) available at
https://reliefweb.int/report/south-sudan/climate-peace-and-security-fact-sheet-south-sudan (accessed 5 March
2023).
378
K Kennedy and K Basotia ‘The Internal Displacement of People in South Sudan’ (E-International Relations, 29
June 2021) available at https://www.e-ir.info/2021/06/29/the-internal-displacement-of-people-in-south-sudan/
(accessed 5 March 2023).
379
Climate Diplomacy ’Climatic Changes and Communal Conflicts in South Sudan’ available at https://climatediplomacy.org/case-studies/climatic-changes-and-communal-conflicts-south-sudan (accessed 5 March 2023).
380
IOM ‘Half a Million Displaced in Malawi by Cyclone: Humanitarian Needs Soar’ 1 March 2023.
381
IOM (n 318) 33.
382
More than 16,000 children are displaced following Libya floods – UNICEF available at
https://www.unicef.org/press-releases/more-16000-children-are-displaced%E2%80%AFfollowing-libya-floodsunicef (accessed 10 March 2023).
383
Floodlist ‘Nigeria – Death Toll Rises, 1.3 million Displaced, Floods to Continue Until End November’ available
at
https://floodlist.com/africa/nigeria-death-toll-rises-1-3-million-displaced-floods-to-continue-until-endnovember (accessed 10 March 2023).
384
IDMC (n 313) 18.
385
African Union, Background Paper for Theme 1: Climate Change, Disasters, and Displacement in Africa.
386
UNHCR Regional Fact Sheet ‘Southern Africa’ February 2023.
375
61 | P a g e
support and against such a proposition, especially through the application of the OAU
Convention Governing the Specific Aspects of Refugee Problems in Africa,387 the lack
of certainty of position regarding their protection will further compound the situation
and plight of populations of Africa who find themselves outside national borders due
to future sudden or slow climate onsets.
3.4.6. Persons with disabilities
147.
Persons with disabilities (PwDs) are especially exposed to the effects of climate
change.388 This heightened level of vulnerability to the impact of climate change is not
only on account of the physical limitations they face, but also due to the prejudice they
face. Additionally, in low-income settings such as in states in Africa, the relationship
between poverty and disability is extremely strong.389 Despite this, it is not easy to
establish a full understanding of the ways in which PwDs in Africa are impacted by
climate change. One of the challenges for understanding the impact of climate change
on PwDs is access to information. Disaggregated data is scarce on the number of PwDs
and on how they are especially affected by climate change in Africa.390
148.
Although PwDs have generally been excluded from climate change policy processes,
Negotiations at COP27 in 2022 emphasised the call for climate justice for people with
disabilities.391 PwDs are often among those most adversely affected in an emergency,
experiencing unequally higher rates of morbidity and mortality, and a deficit of access
to emergency support. Their suffering ranges from cultural stigma and lack of
awareness to inaccessible environments (services and workplaces), particularly in rural
areas, in addition to a general lack of comprehensive protection and enforcement of
their rights.392 Sudden-onset and slow-onset events associated with climate change
impact on their access to food and nutrition, safe drinking water and sanitation, health-
387
OAU Convention Governing the Specific Aspects of Refugee Problems in Africa Adopted by the Assembly of
Heads of State and Government at its Sixth Ordinary Session Addis Ababa, Ethiopia 10th September 1969 Entry
into Force 20th June 1974 (OAU Refugee Convention); for some of the debates, see M Addaney, AO Jegede and
MZ Matinda ‘The protection of climate refugees under the African human rights system: proposing a value-driven
approach’ (2019) 3 African Human Rights Yearbook 242-259.
388
N Maaninou ‘Disability Inclusion in Climate Adaptation and Sustainable Development: A North African good
practice’ (2020) 6(2) Kohl: a Journal for Body and Gender Research 230-237.
389
D Filmer ‘Disability, poverty, and schooling in developing countries: results from 14 household surveys’(2008)
22 The World Bank Economic Review 141–163.
390
A Kosanic and others ‘An inclusive future: disabled populations in the context of climate and environmental
change’ (2022) 55 Current Opinion in Environmental Sustainability 1.
391
N Marangu, ‘COP27 can be a reset on climate justice for people with disabilities’ (Africa Renewal,27 July 2022)
available at https://www.un.org/africarenewal/magazine/july-2022/cop27-can-be-reset-climate-justice-peopledisabilities (accessed 15 March 2023).
392
B Rohwerder Disability in North Africa (Institute of Development Studies, 2018).
62 | P a g e
care services and medicines, education and training, adequate housing and access to
decent work.393
149.
Apart from Article 18 of the African Charter, the Protocol to the African Charter on the
Rights of Persons with Disabilities is particularly relevant both for ensuring protection
of the rights of PwDs in conditions of climate change and facilitating their active role
in climate change decision-making processes. Of particular significance for addressing
the particular needs of PwDs during climate change are the integration into the
preparedness and response plans of States Parties’ measures tailored to the specific
conditions of PwDs, including their participation in consultations, development and
implementation of such plans and the delivery of emergency support targeted to PwDs.
Under the Protocol on the rights of PwDs, the provisions that are of particular
significance in context of climate change include Articles 4 (General obligations) 5 and
6 (on non-discrimination and equality), 8 (the right to life), 15 (accessibility), 22 (on
self-representation), 24 (access to information) and 32 (on statistics, data and other
surveys).
150.
Article 12 of the Protocol on situations of risk is of particular and direct significance in
the context of climate change. First, it requires states parties to ‘take specific measures
to ensure the protection and safety of persons with disabilities in situations of risk,
including situations of…forced displacements, humanitarian emergencies and natural
disasters.’ Second, it demands that PwDs ‘are consulted and participate in all aspects
of planning, implementation and monitoring of pre and post-(conflict) reconstruction
and rehabilitation.’ For purposes of making this provision relevant to all situations of
risk, which is the subject of Article 12, the word conflict in brackets should be read to
mean emergency.
3.4.7
Older Persons
151.
Older persons face an enormous risk to their livelihood and survival in the face of the
adverse consequences of climate change. In Central Africa, it is reported that climate
variability and change linked to heat waves affect the health of the elderly.394 Similar
findings are recorded in the large cities of East and West Africa, where the elderly are
categorised as being particularly at risk.395
152.
Some older persons are physically less able to access food distribution points in
emergency situations.396 Older persons are more likely to live in homes with inadequate
heating and cooling systems to handle temperature extremes. They often lack access to
HRC ‘Analytical study on the promotion and protection of the rights of persons with disabilities in the context
of climate change, Report of the Office of the United Nations High Commissioner for Human Rights’ 22 April
2022 A/HRC/44/30, para 5 (OHCHR persons with disabilities study report).
394
AR 6 (n 3) section 9.10.2.3.
395
As above.
396
OHCHR Older Persons Report (n 333).
393
63 | P a g e
safe, clean and renewable energy.397 Older persons are more prone to property loss due
to lack of insurance, reduced personal finances, and poor creditworthiness, and in the
aftermath of disasters, exclusion from humanitarian aid can make it difficult for them
to restore damaged homes.398 In the context of climate actions, older persons may be
stereotyped as ‘passive, incapable and withdrawn’.399 To add to these problems, they
are rarely mentioned in international environmental agreements. This development
compounds their access to basic materials and resources required to avoid or cope with
the adverse consequences of climate change in Africa.
153.
Climate change policies and response measures should accordingly have particular
regard to the needs of older persons. To this end, they need to be informed by the
standards set in the Protocol to the African Charter on the Rights of Older Persons in
Africa. The provisions that are of particular significance in the context of climate
change include Articles 3 & 4 on non-discrimination and equality, 5 (right to make
decisions), 7 (social protection), 10 (care and support), and 18 (accessibility). Of all the
provisions in this Protocol, the one that stands out and is of particular significance in
the context of climate change is Article 14 on conflict and disaster situations. This
provision requires States Parties to ‘ensure that, in situations of risk, including natural
calamities… Older Persons shall be among those to enjoy access, on a priority basis,
to assistance during rescue efforts, settlement, repatriation and other interventions.’ It
further commits States to ‘ensure that Older Persons receive humane treatment,
protection and respect at all times and are not left without needed medical assistance
and care.’
3.4.8. The poor
154.
Climate change has a greater impact on people living in poverty. In Africa, at
approximately 1.5°C, climate change is projected to be a poverty multiplier, making
poor people poorer and increasing poverty headcounts.400 In Africa, a large share of the
population lives below the poverty line, and their livelihood depends on activities
extremely sensitive to climatic conditions. For instance, based on a survey conducted
among 32 African countries between 2016 and 2018, about 73 per cent of the
respondents who had experienced high poverty levels stated that climate change was
having a negative impact on their lives. Climate change could force between 3 and 16
million people into extreme poverty, due to its impacts on agriculture and food
OHCHR ‘Climate change impacts the human rights of older persons’ available at
https://www.ohchr.org/sites/default/files/Documents/Issues/ClimateChange/materials/2PagersolderPeopleCC21Ju
ne.pdf (accessed 20 March 2023).
398
OHCHR Older persons report (n 333).
399
H Gary, D Brown and S Hards ‘Older People and Climate Change: The Case for Better Engagement’ (Stockholm
Environmental Institute, 2010) 2.
400
AfDB
‘Climate
change
impacts
on
Africa’s
economic
growth’
available
at
https://www.afdb.org/sites/default/files/documents/publications/afdb-economics_of_climate_change_in_africa.pdf
(accessed 26 March 2023).
397
64 | P a g e
prices.401 Research shows that climate change impacts may exacerbate poverty
indirectly through increasing the cost of food, housing and healthcare, among other
rising costs borne by the poor.402 Apart from the vulnerability of the poor to the impacts
of climate change and their weak resilience to climate change impacts, climate change
produces and reproduces disproportionate exposure to negative consequences, which
then raises their susceptibility to damage.403
155.
The poor frequently bear indirect impacts of adaptation interventions, such as flood
protection barriers, which may displace flood waters away from high-income
populations toward poorer communities.404 The poor generally lack access to
adaptation options and are most adversely affected by maladaptation.405 Adaptation
programs indirectly affect the poor as public resources are drawn into risk reduction
interventions, and away from social welfare and safety nets.406
3.4.9. Persons living with and affected by HIV and AIDS
156.
Climate change is directly and indirectly linked to human health, including through
access to treatment and care. Climate change negatively impacts the increase in HIV
and AIDS infections as extreme climatic conditions result in behavioural changes and
choices, which in turn shape the prevalence distribution and transmission of infectious
diseases.407
157.
A study has found that women in rural areas who had recently experienced drought had
an increased probability of having recently acquired HIV.408 In Lesotho, drought
conditions such as loss of livelihood and food insecurity were significantly associated
with vulnerability to engage in riskier sex behaviours and higher HIV prevalence rates
among rural young women aged 15–19 years old.409 In Nigeria, food insecurity related
to climate change is reported to increase HIV transmission by fuelling, among others,
World
Economic
Forum
‘Climate
crisis
and
the
poor’
available
at
https://www.weforum.org/agenda/2023/01/climate-crisis-poordavos2023/#:~:text=By%202050%2C%20unchecked%20climate%20change,of%20hard%2Dwon%20developme
nt%20achievements (accessed 26 March 2023).
402
S Hallegatte, SM Fay and EB Barbier ‘Poverty and climate change: Introduction. (2018) 23(3) Environment and
Development Economics 217.
403
SN Islam and J Winkel ‘Climate Change and Social Inequality’ DESA Working Paper No. 152
ST/ESA/2017/DWP/152 October 2017.
404
D Mustafa and D Wrathall ‘Indus basin floods of 2010: Souring of a Faustian bargain?’ (2011) 4(1) Water
Alternatives 72.
405
As above.
406
SH Eriksen, AJ Nightingale and H Eakin ‘Reframing adaptation: The political nature of climate change
adaptation’ (2015) 35 Global Environmental Change 523.
407
A Epstein and others ‘Drought, HIV Testing and Transmission Risk Behaviours: A Population-Based Study in
10 High HIV Prevalence Countries in Sub-Saharan Africa’ (6 September 2022) available at
https://doi.org/10.1007/s10461-022-03820-4 (accessed 25 March 2023).
408
A Trickey and others ‘Investigating the Associations between Drought, Poverty, High-Risk Sexual Behaviours,
and HIV incidence in Sub-Saharan Africa: A Cross-sectional Study’ (2024) Aids Behaviour.
409
AJ Low and others ‘Association between severe drought and HIV prevention and care behaviours in Lesotho: A
population-based survey 2016–2017’ (2019) 16(1) PLoS Medicine e1002727.
401
65 | P a g e
sexual risk behaviours (such as sexual violence against women and transactional ‘foodfor-sex’).410 In Uganda, food insecurity associated with climate extreme events worsens
health outcomes among people living with HIV by degrading immune function and
compromising adherence to, and efficacy of, antiretroviral therapy (ART).411
158.
Vector-borne diseases such as malaria provide a difficult immunological challenge to
those with HIV, whose immunocompromised state predisposes them to be more
vulnerable to serious infections and death. Studies have shown a clinical interaction
between malaria and HIV-1 infections, with one indicating that nearly 30% of the HIV
disease burden comes from malaria co-infections.412
159.
Climate extremes such as flooding disrupt HIV epidemic control due to damage to
health infrastructures and prevention strategies. Specifically, it can increase the rate of
untreated HIV and aggravate AIDS.413 Damage to health and transportation
infrastructure due to floods and extreme weather events affects access to HIV
prevention and treatment services. This increases transmission of HIV due to decreased
access to condoms and other prevention services and worsens health outcomes among
those already infected through interruptions in ART access and treatment.414
160.
In April 2022, Kwa-Zulu-Natal, a province in South Africa known for a high rate of
HIV prevalence, experienced a flood, which resulted in loss of lives and exposed
vulnerable women to sexual exploitation and disruption in access to antiretroviral
(ARV) distribution.415 A cyclone in Mozambique caused widespread damage to homes
and infrastructure and occasioned loss of access to medication such as ARV.416 A
cyclone in Malawi disrupted the access of people living with HIV to healthcare and
access to medication, which compounded an already difficult situation where high
levels of HIV are prevalent.417 Also, human migration associated with climate change
results in the enlargement and extension of new sexual networks, which worsens health
outcomes among those with the virus by disrupting access to HIV care and ART.418
JL Oyefara ‘Food insecurity, HIV/AIDS pandemic and sexual behaviour of female commercial sex workers in
Lagos metropolis, Nigeria’ (2007) 4 (2) SAHARA-J: Journal of Social Aspects of HIV/AIDS 626–35.
411
SD Weiser and others ‘Changes in food insecurity, nutritional status, and physical health status after antiretroviral
therapy initiation in rural Uganda’ (2012) 61(2) Journal of Acquired Immune Deficiency Syndrome 179.
412
LJ Abu-Raddad, P Patnaik and JG Kublin ‘Dual infection with HIV and malaria fuels the spread of both diseases
in sub-Saharan Africa’ (2006) 3 Science 1603-6.
413
P Wasserman and others ‘Wasting disease, chronic immune activation, and inflammation in the HIV infected
patient’ (2011) 26(1) Topics in Clinical Nutrition 14.
414
JJ Schatz ‘Floods hamper health-care delivery in southern Africa’ (2008) 371(9615) Lancet 799.
415
AN Simango ‘How Climate Change Is Impacting People Living with HIV and Medication access in South
Africa’ (The Body, 11 November 2022) available at https://www.thebody.com/article/climate-change-impactingpeople-living-with-hiv-medication-access-south-africa (accessed 1 April 2023).
416
UNAIDS ‘How climate change is affecting people living with HIV’ (UNAIDS, 20 September 2019) available at
https://www.unaids.org/en/resources/presscentre/featurestories/2019/september/20190920_climate-changepeople-living-with-hiv (accessed 2 April 2023).
417
As above.
418
F Tanser and others ‘HIV treatment cascade in migrants and mobile populations’ (2015) 10(6) Current Opinions
HIV AIDS 430.
410
66 | P a g e
3.4.10. Coastal and Peasant People
161.
Climate change has implications for coastal communities and peasant people in Africa.
Coastal communities are human settlements located near coastlines or along bodies of
water. These communities rely on marine resources for sustenance and economic
activities.419 A peasant, in terms of the UN Declaration on Peasants’ Rights, refers to
‘any person engaged in artisanal or small-scale agriculture, crop planting, livestock
raising, pastoralism, fishing, forestry, hunting or gathering, and handicrafts related to
agriculture or a related occupation in a rural area. It also applies to dependent family
members of peasants’.420
162.
Changes in precipitation and temperature patterns due to climate change create stress
in river and oceanic ecosystems, with implications for migration patterns of fish and a
reduction in the supply of ocean fisheries and the broader livelihood of coastal
populations in Africa.421 Also, coastal populations are vulnerable to climate change
impacts such as coastal flooding and pollution.422 Apart from the adverse consequences
of these developments to the more than 12 million people engaged in the fisheries
sector in Africa, according to the World Bank,423 climate change threatens the potential
20.7 million jobs in 2030, and 21.6 million jobs by 2050 that Africa’s fisheries are
anticipated to support.
163.
Climate change is a real threat to peasant farmers’ livelihoods across the world. Peasant
farmers’ dependence on rainfall for cultivation in particular and their limited adaptive
capacity, in general, render them vulnerable to the adversities of climate change.424
Although different stakeholders are involved in the domain of agriculture, peasant
farmers who make up the largest proportion (over 80%) of farmers in less-developed
countries are the most affected by climate change.425 Smallholder farmers are also
vulnerable to climate change due to insufficient access to land, high poverty, and poor
education levels, limited access to extension training, and a lack of financial support to
adopt adaptive measures.426
‘Coastal communities’ available at https://library.fiveable.me/key-terms/ap-enviro/coastal-communities
(accessed 5 April 2023).
420
United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas: resolution /
adopted by the Human Rights Council on 28 September 2018.
421
VWY Lam and others ‘Climate change impacts on fisheries in West Africa: implications for economic, food and
nutritional security’ (2012) 34(1) African Journal of Maritime Science 103; EY Mohammed and ZB Uraguchi
Impacts of Climate Change on Fisheries: Implications for food security in Sub-Saharan (Nova Science Publishers,
Inc, 2013).
422
ISS ‘Africa Rising tides threaten low-lying coastal West Africa’ available at https://issafrica.org/iss-today/risingtides-threaten-low-lying-coastal-west-africa (accessed 5 April 2023).
423
World Bank ‘Improving Livelihoods and Creating Wealth through Sustainable Fisheries’ available at
https://documents1.worldbank.org/curated/en/703181468191040461/pdf/103666-BRI-Fisheries-and-Aquacultureglobally-and-in-Africa-Brief-PUBLIC.pdf (accessed 20 March 2023).
424
FAO, IFAD, UNICEF, WFP & WHO The state of food security and nutrition in the world 2018. Building climate
resilience for food security and nutrition (Food and Agriculture Organization, 2018).
425
FAO ‘Climate change and food security: Risks and responses’ (FAO, 2016).
426
AMR Fadina and D Barjolle ‘Farmers’ adaptation strategies to climate change and their implications in the Zou
department of South Benin’ (2018) 5 Environments 15; BK Kogo, L Kumar and R Koech ‘Climate change and
419
67 | P a g e
164.
Confronted with climate vagaries, there has been emphasis on the need for peasant
farmers to adopt sustainable and climate-smart agriculture (CSA) practices, the latter
considered as an approach to change agrifood systems into more environmentally
friendly and climate-resilient practices. However, evidence on the socio-economic
drivers of farmers‘ adoption of CSA practices and their effect on food security yields
remains inadequate. 427
3.4.11.
Future Generations
165.
Climate change is not only a current reality. Its impact projection for the future is just
as real and more far-reaching. According to the report of the IPCC on global warming
of 1.5°C, failure to achieve net zero carbon dioxide emissions and to stabilise global
temperatures below 2°C by 2100 will be devastating for the future global climate
system and human populations.428
166.
The necessity to focus on future generations and the implications of climate change on
their rights is prominent in a number of international instruments. Article 3(1) of the
UNFCCC provides that: ‘parties should protect the climate system for the benefit of
present and future generations of humankind, on the basis of equity and in accordance
with their common but differentiated responsibilities and respective capabilities’. The
International Law Commission’s 2021 Draft Guidelines on the Protection of the
Atmosphere affirms that: ‘the atmosphere should be utilised in an equitable and
reasonable manner, taking fully into account the interests of present and future
generations’.429 The Paris Agreement refers to intergenerational equity and sustainable
development,430 while the Stockholm Declaration and Rio Declaration recognise a
responsibility to future generations.431 The protection of future generations is implicit
in human rights instruments. The 2023 Maastricht Principles on the Human Rights of
Future Generations reviews international law, its general principles and customary
variability in Kenya: A review of impacts on agriculture and food security’ (2021) 23 Environment Development
and Sustainability 23.
427
KN Mthethwa ‘The determinants of adoption of Climate Smart Agricultural (CSA) Practices and its effects on
smallholder maize farmer’s welfare’ Submitted in Fulfilment of the Academic Requirements for the Degree of
Master of Agriculture Agricultural Extension and Rural Resource Management School of Agricultural, Earth, and
Environmental Sciences, College of Agriculture, Engineering, and Science the University of KwaZulu-Nata (2023).
428
HO Zhai and others (eds) Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming
of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways in the context of
strengthening the global response to the threat of climate change, sustainable development and efforts to eradicate
poverty (Geneva: World Meteorological Organization 2018) 1-32.
429
ILC ‘Draft Guidelines on the Protection of the Atmosphere, with Commentaries Thereto’ (2021), Guideline 6
on the equitable and reasonable utilization of the atmosphere.
430
Paris Agreement (n 5) preambular paragraph 11.
431
The 1972 Stockholm Declaration, adopted 16/06/1972, UN Doc. A/RES/2994(XXVII) formally recognised a
responsibility to future generations in Principle 1; see also the 1982 United Nations World Charter for Nature,
UNGA Res 37/7, 37 UNGAOR Suppl (No 51) 17, UN Doc A/37/51 (1982). and Principle 3 of the Rio Declaration,
adopted at Rio de Janeiro, June 14, 1992].
31 I.L.M. 874 (1992), refers to the environmental needs of present and future generations.
68 | P a g e
norms to ‘affirm binding obligations of States and other actors as prescribed under
international and human rights law’. These principles set out that the enjoyment of
human rights cannot be interpreted as limited to those currently living, but also include
future generations.432
167.
The protection of the rights of future generations in the context of adverse effects of
climate change is legally possible in the provisions of key human rights instruments
examined in this study, including the African Charter, Kampala Convention, the
Conservation Convention and the ACRWC. This position is based on the reality that
there is no clause or provision anywhere in the instruments which specifically excludes
future generations.433 In relation to the right to environment, the African Commission
in its State Reporting Guidelines and Principles on Articles 21 and 24 held that part of
the requirement of sustainability is that ‘the environment should be used in a
sustainable manner, which fulfils the needs of the present generation, without
compromising the ability of future generations to meet their own needs.’
168.
The African Commission Resolution on the human rights impacts of extreme weather
in Eastern and Southern Africa due to climate change encourages states parties, the AU
and Regional Economic Communities to reinforce regional and continental
cooperation regarding climate change adaptation and mitigation and response to
climate change-induced humanitarian crisis, considering human and peoples’ rights of
present and future generations.434 Also, the African Commission Resolution on
Climate Change and Human Rights in Africa affirms the need to protect the climate
system for the benefit of present and future generations of humankind, based on the
principles of equity and common but differentiated responsibilities and respective
capabilities.435 It further encourages states to support regional and international
cooperation to achieve strong, committed and comprehensive climate action to
safeguard human rights of populations in Africa, both for today and future
generations.436
3.4.12.
169.
Climate and Environment Defenders
Climate and environment defenders are at risk because of the backlash that often arises
from their involvement in advocacy, litigation and climate-related awareness-raising
activities. These activities are sometimes seen by states as undermining their
developmental pursuits. As a result, they are targets of arrest or molestation when they
‘Maastricht Principles on the Human Rights of Future Generations’, 3 February 2023, available at
https://www.ohchr.org/sites/default/files/documents/new-york/events/hr75-future-generations/MaastrichtPrinciples-on-The-Human-Rights-of-Future-Generations.pdf (accessed 20 March 2023).
433
AO Jegede ‘Climate Change and the Future Generation under the African Human Rights System: Fostering
Pathways and Partnerships’ Global Campus on Human Rights Policy Briefs (2021).
434
African Commission ‘Resolution on the human rights impacts of extreme weather in Eastern and Southern
Africa due to climate change - ACHPR / Res. 417 (LXIV) 2019 Done in Sharm el Sheikh, 14 May 2019.
435
African Commission ‘Resolution on Climate Change and Human Rights in Africa - ACHPR/Res.342(LVIII)
2016 Done in Banjul, The Islamic Republic of The Gambia, 20 April 2016.
436
As above.
432
69 | P a g e
embark upon protests,437 strikes and litigation, including children and youth
defenders.438 They may suffer ordeals including intimidation, criminalisation,
deprivation of their rights to freedom of assembly, association, expression, movement
and access to justice, and extrajudicial killings. In other instances, there has been
resistance in Africa by businesses and directors against NGOs and activists in courts
through strategic litigation against public participation (often termed SLAPP), in
climate change matters.439
170.
IV.
In the context of climate change and given the importance of access to information and
effective participation of affected communities, it is imperative to ensure the protection
of the civic space and, importantly, the role of climate and environmental defenders.
The African Commission has passed a number of resolutions that highlight the plights
of human rights defenders in Africa, and this needs to extend in the context of climate
change to the specific roles of climate and environmental defenders. Especially in its
Resolution on the Situation of HRDs in Africa, the African Commission expressed
concern about increasing threats to defenders working on issues, including climate
justice and the protection of the environment. It emphasised the important role of civil
society organisations (CSOs) in general and human rights defenders in particular, in
the promotion and protection of human rights in Africa.440
States' obligations in the climate change context
171.
This section seeks to clarify the applicable obligations of states in Africa in the context
of the adverse consequences of climate change and climate measures. States human
and peoples’ rights obligations with reference to accountability for climate wrongs
before regional bodies need to be approached with particular sensitivity. This is
principally on account of the fact that from ‘a human and peoples’ rights perspective,
climate change raises important questions about the locus of obligations… (which) is
tied directly to the question of responsibility to climate change. The implication of this
is that while the state where climate change is having dire impacts bears certain
AO Jegede & MC Stoffels ‘Climate change protests and a liberal rights approach in South Africa: pitfalls and
potentials (2022) 33 (2) Stellenbosch Law Review 125.
438
E Eide & R Kunelius ‘Voices of a generation the communicative power of youth activism’ (2021) 169 Climate
Change 1.
439
C Vinti ‘SLAPP suits as a ‘weapon’ against environmental activism in South Africa’15th February 2021; see
for instance South African cases Mineral Sands Resources (Pty) Ltd and Another v Reddell and Others; Mineral
Commodities Limited and Another v Dlamini and Another; Mineral Commodities Limited and Another v Clarke
(7595/2017; 14658/2016; 12543/2016) [2021] ZAWCHC 22; [2021] 2 All SA 183 (WCC); 2021 (4) SA 268 (WCC)
(9 February 2021).
440
Declaration on the Promotion of the Role of Human Rights Defenders and their Protection in Africa
The African Commission on Human and Peoples’ Rights, meeting at its XX Ordinary Session held from XX to XX
in Banjul, the Gambia: Jan 25, 2024.
437
70 | P a g e
obligations, it would not be enough to address fully the human and peoples’ rights
protection and the justice issues that arise from climate change.’441
4.1.
Sources of authority of state obligations
172.
The first and primary sources of authority on the obligations of African states are
the African Charter on Human and Peoples’ Rights and the related human rights
instruments to which States Parties to the African Charter are bound by. As such, the
first and possibly primary sources of obligations of states are the human and peoples’
rights instruments, of which the African Charter, as the most universally ratified and
oldest instrument, plays a major role. As such, it is the African Commission’s
submission that a major focus in clarifying the obligations of states is on the relevant
standards that the African human rights system provides for addressing the human
rights issues arising from climate change. It is worth recalling in this regard that the
African human and peoples’ rights system anchored on the African Charter is unique
in the range of human and peoples’ rights it gives recognition to. The African Charter
recognises and accords equal legal status not only to civil and political rights and socioeconomic rights but also to the collective rights of peoples. Its status as a pioneer in
recognising the right to a safe environment makes it stand out in providing a more
comprehensive framework for addressing the issues raised in the advisory opinion.
173.
Additionally, in Chapter IV, the African Charter on Human and Peoples’ Rights
outlines what it calls ‘applicable principles.’ Thus, Article 60 of the Charter stipulates
as follows:
The Commission shall draw inspiration from international law on human and
peoples’ rights, particularly from the provisions of various African instruments on
Human and Peoples’ Rights, the Charter of the United Nations, the Charter of the
Organisation of African Unity, the Universal Declaration of Human Rights, other
instruments adopted by the United Nations and by African countries in the field of
Human and Peoples’ Rights, as well as from the provisions of various instruments
adopted within the Specialised Agencies of the United Nations of which the Parties
to the present Charter are members.
174.
Article 61 further provides:
The Commission shall also take into consideration, as subsidiary measures to
determine the principles of law, other general or special international conventions,
laying down rules expressly recognised by Member States of the Organisation of
African Unity, African practices consistent with international norms on Human and
Human and Peoples’ rights implications of climate change: Implications for vulnerable groups and corporate
accountability, available at https://achpr.au.int/en/news/press-releases/2024-11-08/implications-climate-changeimplications-vulnerable-groups-and (accessed 29 March 2026).
441
71 | P a g e
Peoples’ Rights, customs generally accepted as law, general principles of law
recognised by African States as well as legal precedents and doctrine.
175.
It emerges from the foregoing provisions of the African Charter that apart from human
and peoples’ rights instruments ‘adopted by the United Nations and by African
Countries in the field of Human and Peoples’ Rights,’442 the sources that the African
Commission and, by implication, the African Court are expected to draw from include
the following:
a) the provisions of various instruments adopted within Specialised Agencies of the
United Nations of which the Parties to the Charter are members;
b) Other general or special international conventions, laying down rules expressly
recognised by AU member states; and
c) Customs generally accepted as law and general principles of law recognised by
African States, as well as legal precedents and doctrine.
176.
For purposes of climate change and its impact on human and peoples’ rights, the most
relevant of the second sources of authority within the framework of Articles 60 and
61 of the African Charter include
a) the treaties on climate change negotiated and adopted at the international level, of
which African states are parties (UNFCCC, Kyoto Protocol, and Paris Agreement);
b) environmental treaties both at continental and international levels (the Revised
African Convention on Conservation of Nature, the Ozone Layer Convention,
Montreal Protocol, Kigali Amendment, Biodiversity Convention and
Desertification Convention); and
c) customary international law.443
4.2.
177.
Procedural and substantive obligations of states
The African Commission’s 2018 State Reporting Guidelines and Principles on Articles
21 and 24, in the part outlining the explanatory note, articulated a distinction between
procedural and substantive obligations in relation to the right to environment. This
framing can be used for identifying the various obligations primarily states bear and
secondarily those borne by non-state actors, notably corporations. This approach has
already been applied in addressing climate change and human rights. In his 2019 report,
the Special Rapporteur on the issue of human rights obligations relating to the
enjoyment of a safe, clean, healthy and sustainable environment clarifies the
obligations of States and the responsibilities of businesses towards ensuring a safe
climate.444 The Special Rapporteur explains that a framework that covers procedural
Articles 60 and 61 of the African Charter on Human and Peoples’ Rights.
As above.
444
UNGA ‘Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a
safe, clean, healthy and sustainable environment’ A/74/161, 15 July 2019.
442
443
72 | P a g e
and substantive obligations towards those in vulnerable situations can be deployed or
operationalised in the context of climate change in order to respect, protect and fulfil
human rights.445
4.2.1.
Charter
General obligations and obligations arising from Article 24 of the African
178.
The general obligation of states under the African human rights system’s anchor human
rights instrument, the African Charter, is laid down in Article 1 of the Charter. This
article stipulates:
[P]arties to the present Charter shall recognise the rights, duties and freedoms
enshrined in the Charter and shall undertake to adopt legislative or other measures
to give effect to them.
179.
The first of the general obligations of States Parties to the African Charter as it relates
to the impact of climate change, is accordingly to give recognition to the rights
enunciated in the African Charter, including, particularly relevant to climate change,
the right to a safe environment under Article 24 of the African Charter. As outlined in
the African Commission’s State Reporting Guidelines and Principles on Articles 21
and 24 of the African Charter, by virtue of the obligation to ‘give recognition,’ African
states ‘are accordingly duty-bound to give legal application to these rights. To this end,
State Parties should incorporate the rights in these Articles (21 and 24) into their
national law.’446
180.
The second aspect of the obligation that states bear under Article 1 is ‘to adopt
legislative or other measures to give effect to’ the rights. Within this framework, the
measures expected include the adoption of ‘national policies, strategies and plans
geared towards the realisation of all the rights.’ Additionally, states should also adopt
budgetary measures. ‘These are the measures that make available the required
resources for the implementation of the legislative and policy measures.’447
181.
In the context of climate change, Article 1 of the African Charter entails three
general obligations. The first of these is the expectation that African states adopt
preventive measures to the maximum extent of their capabilities to protect or, at the
very least, minimise the exposure of individuals and peoples to the foreseeable threats
that manifestations of climate change pose to the enjoyment of their rights and
freedoms enshrined in the African Charter. When translated to the context of climate
change, ‘States’ obligations to protect individuals and peoples extend to foreseeable
threats to human rights related to climate change, such as an increased risk of drought,
UNGA ‘Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a
safe, clean, healthy and sustainable environment’ A/HRC/37/59, 24 January 2018.
446
State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter relating to Extractive
Industries, Human Rights and the Environment (2018), p. 10.
447
State Reporting Guidelines, para 38, p 31.
445
73 | P a g e
flooding and sea level rise or shrinking of water bodies such as lakes or rivers.’448 This
obligation to prevent foreseeable harm entails introducing institutional arrangements,
including those aimed at preventing the occurrence of severe or irreversible damage
to the environment. This general obligation also arises from customary international
law and general principles of law as established by the International Court of Justice
severally.
182.
The African Charter is the pioneer international human rights treaty that gives
recognition to the right to a safe environment. It stipulates in Article 24 that ‘[a]ll
peoples shall have the right to a general satisfactory environment favourable to their
development.’ As the African Commission pointed out in its State Reporting
Guidelines and Principles on Articles 21 and 24 of the African Charter, what is
guaranteed under this right is ‘an environment that is clean enough for a safe and secure
life and development of individuals and people.’449
183.
In recognising the right to a safe environment as a stand-alone right, the African Charter
affirms it as an autonomous right, distinct from environmental protection derived from
other rights such as the right to life and the right to health. As such, states bear specific
obligations arising from the protection accorded to the right to environment as an
autonomous right. An important implication of the recognition of the right to a safe
environment as an autonomous right under the African Charter is that it protects the
natural environment and ecosystem. To borrow from the Inter-American Court, this
protection that the right to a safe environment affords is ‘not only because of the effects
that its degradation may have on other human rights, but because of its vital
interdependence with other living organisms that make life on this planet possible.’450
The implication of this, as the African Commission put it in SERAC v. Nigeria,451 is
that the right to environment under Article 24 ‘requires the state to take reasonable and
other measures to prevent pollution and ecological degradation, to promote
conservation, and to secure an ecologically sustainable development and use of natural
resources.’452
184.
The substantive elements of the right to safe environment states parties have obligation
to respect, protect, promote and fulfil as enunciated in SERAC v Nigeria and the State
Reporting Guidelines and Principles include clean air; a safe and stable climate; safe
and sufficient water; healthy and sustainably produced food; non-toxic environments
African Commission on Human and Peoples’ Rights “Human and peoples’ rights implications of climate change:
Implications for vulnerable groups and corporate accountability available at https://achpr.au.int/en/news/pressreleases/2024-11-08/implications-climate-change-implications-vulnerable-groups-and (accessed 17 March 2026).
449
State Reporting Guidelines and Principles on Articles 21 and 24.
450
Para 273.
451
Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v
Nigeria (Communication No. 155/96).
452
As above, para 52.
448
74 | P a g e
in which to live, work, study and play; healthy biodiversity and ecosystems; access to
information, participation in decision-making, and access to justice and effective
remedies, including the secure exercise of these rights free from reprisals and
retaliation.
185.
The first obligation of states is the obligation to prevent significant harm to the
environment, which was also specifically articulated in the previous section.
Additionally, together with the Revised African Convention on the Conservation of
Nature and Natural Resources,453 States must, under Article 24, not only prevent
activities that cause significant environmental damage, but also adopt measures to
guarantee the protection, restoration and regeneration of biodiversity and ecosystems.
Article 18 of the Convention provides for an obligation on states to ‘take all appropriate
measures to prevent, mitigate and eliminate to the maximum extent possible,
detrimental effects on the environment, in particular from radioactive, toxic, and other
hazardous substances and wastes.’
186.
For purposes of protecting the environment from climate change, consideration should
also be given to the international law standards on the environment and climate
change,454 which provide for the protection of the environment from climate harms.
The Paris Agreement provides that Parties should ‘take action to conserve and enhance,
as appropriate, sinks and reservoirs of greenhouse gases […], including forests’.455
Also significant is the obligation to prevent loss or destruction of biodiversity and the
disruption of sensitive ecosystems, including the marine environment, which arise from
the Biodiversity Convention, the Desertification Convention, the Kyoto Protocol and
the UN Convention on the Law of the Sea.
187.
In addition to treaty obligations, it is now established, through the International Court
of Justice Advisory Opinion456 that customary international law also contains state
obligations in relation to protecting the climate system. These obligations include (a)
the duty to prevent significant harm to the environment by acting with due diligence
and in accordance with common but differentiated responsibilities and respective
capabilities, and (b) the duty to cooperate in good faith to prevent significant harm.
4.2.2. Procedural Obligations
453
African Union Revised African Convention on the Conservation of Nature and Natural Resources, 2013.
The Paris Agreement recognises ‘the importance of ensuring the integrity of all
ecosystems, including oceans, and the protection of biodiversity.’
455
Article 5(1).
456
ICJ (2025), para 131.
454
75 | P a g e
188.
Article 16(1) (a)(b) of the African Conservation Convention enjoins states to adopt
legislative and regulatory measures necessary to ensure the timely and appropriate
dissemination and access of the public to environmental information. The principle of
access to information is key in all the instruments at the African regional level on
climate change and human rights. As has been shown, such provisions are also found
in Article 9 of the African Chanter, Article 7 of the ACRWC, Article 9 of the Maputo
Protocol, Articles 23 and 24 of the Persons with Disabilities Protocol, Articles 4 and 5
of the African Youth Charter, impliedly under Article 17 of the Older Persons Protocol
and Articles 10(2) and 11(2) of the Kampala Convention. This principle is also
explicitly enunciated in the State Reporting Guidelines and Principles on Articles 21
and 24 of the African Charter in relation to the right to environment, drawing on the
interdependence between Article 24 and Article 9 of the African Charter.
189.
Consequently, in the context of climate change, states in Africa have an obligation to
provide the public with accessible and understandable information regarding the
causes, responses and consequences of the global climate crisis, including
incorporating climate change into the educational curriculum at all levels. Accurate
information on the environmental impacts of financial mechanisms based on carbon
credit markets must be readily available, in an accessible format and appropriate
context, to all. This includes the need for greater transparency about baselines and
methodologies for all credits-generating projects as well as to make all their
information accessible to a ‘non- specialised audience’ so that a project’s climate
impact can be better assessed and used in transparent monitoring and verification to
ensure that carbon credit projects are delivering the promised emissions reductions and
are not contributing to human rights harms.
190.
Additionally, states have to ensure that accurate and up-to-date data about climate
change is available to counter disinformation, by investing in high-quality research
about the impacts and consequences of climate change and ensuring that such
information is disaggregated, specific, and accessible to a general audience both in
content and where it is published.
191.
The African Commission’s State Reporting Guidelines and Principles on Articles 21
and 24 provide in relation to Article 24 on the right to environment, and Article 16(1)
(c) of the Conservation Convention requires states to put in place appropriate
legislative and other measures to ensure participation of the public in decision-making
with a potentially significant environmental impact. Participation should take place
firstly at the general level, in which all citizens should have a say, for example, in
development projects which will have far-reaching environmental and specifically
climate impacts. However, participation should also take place at the local level and
take specific account of the views of people who will be most directly impacted by the
project. Article 14(2)(b) of the Conservation Convention dealing with sustainable
development and natural resources is relevant to the principle of participation in that it
requires ‘an adequate impact assessment’ of policies, plans, programmes, strategies,
projects and activities likely to affect natural resources, ecosystems and the
environment. The right to participate is thus closely related to access to information, as
76 | P a g e
adequate information about environmental, social, cultural and other impacts is
necessary in order for affected people to be able to participate in a free, meaningful and
effective way. Also, Article 17 of the Conservation Convention imposes on states the
obligation to take legislative and other measures to protect ‘traditional rights of local
communities and indigenous knowledge’, including their consultation, FPIC and
benefit sharing.
192.
Another important procedural obligation, as enunciated in the African Commission’s
State Reporting Guidelines and Principles on Articles 21 & 24 related to access to
justice and grievance settlement mechanisms. Article 16(1)(d) of the Conservation
Convention enjoins states to adopt legislative and regulatory measures necessary to
guarantee access to justice in matters related to the protection of the environment and
natural resources. There are examples of good practices on this provision from states
in Africa. For instance, Article 91 of the Namibian Constitution establishes an
Ombudsman with the duty to investigate complaints concerning the over-utilisation of
living natural resources and the irrational exploitation of non-renewable resources.457
Also, Article 129 of the Constitution of Tunisia establishes a Commission for
Sustainable Development and for the Rights of Future Generations to be consulted on
draft laws related to economic, social and environmental issues, as well as development
plans.
193.
The principle of access to justice is a core feature in a number of instruments at the
African regional level. This is evident in Article 7(1) of the African Charter, Articles
16 and 21 of the ACRWC, Article 8 of the Maputo Protocol, Article 4 of the Older
Persons Protocol, Article 13 of the Persons with Disabilities Protocol, and Article 12(1)
of the Kampala Convention. These provisions are of significance to climate change
because, as has been shown, the protection of human rights and environmental rights
defenders is a crucial element of freedom of expression and access to information,
participation and freedom of assembly guaranteed in key regional instruments in
Africa. This may not be achieved unless states avail people with access to justice when
such rights are threatened in Africa. Also, of importance to access to justice is the need
for appropriate laws to ensure accountability of non-state actors and the liberalisation
of the standing rule in states where proof of specific harm suffered is a requirement to
institute actions in environmental matters.458
194.
To fulfil these obligations and responsibilities, States and business enterprises are
required to put in place measures including: the provision of effective access to
remedies for rightsholders regarding all climate change related impacts on human
rights and the environment; formulate an effective remediation for human rights
impacts of climate change, including for past climate change impacts and for future
generations; ensure that interventions are responsive to numerous vulnerabilities,
intersectional discriminations and marginalization experienced by individuals and
457
Namibian Constitution 21 March1990, as amended.
AO Jegede ‘State Duty to ‘Protect’ Rights and Legal Obstacles to Climate Litigation’ in K Bouwer, U Etemire,
Tracy-Lynn Field, and AO Jegede (eds) Climate Litigation and Justice in Africa (Bristol University Press 2024) 4367.
458
77 | P a g e
communities such as children, women, Indigenous Peoples, and persons with
disabilities; and, cooperate to allow a strong culture of accountability at the national,
regional and international levels, for causing or contributing to climate change.
195.
It also requires that appropriate mechanisms are in place to ensure that all judicial and
non-judicial mechanisms are empowered to handle claims based on human rights
impacts of climate change, eliminate all hindrances for bringing such claims, and offer
effective remedies to victims.459 Business enterprises should ensure that all nonjudicial mechanisms, with operational grievance mechanisms, are endowed with the
powers to cope appropriately with claims arising from human rights impacts of climate
change, remove all difficulties around such claims, and offer effective remedies to
victims.460
196.
Remediation is a crucial component of access to justice. Hence, actors should ensure
that remediation focuses on effective remedies for the victims, 461 and develop as well
as implement preventive remedies, including injunctions against State and business
projects with human rights-related climate change risks.462 Business enterprises in
Africa should participate in good faith, and not weaken proceedings before legal and
non-legal tribunals that aim at promoting accountability for climate change-related
impacts on human rights and the environment,463 while industry and business
associations should establish sector-specific or industry-wide operational grievance
mechanisms to tackle complaints about climate change-related impacts on human
rights and the environment.464 Also, states and business enterprises should safeguard
climate defenders, who are often remedy enablers, so that they face no threats,
harassment or reprisals while carrying out their legitimate work to protect the
environment and planet.465
4.2.3. Substantive obligations
197.
From the perspective of specific human and peoples’ rights, substantive obligations of
states essentially relate to the four duties that the African Commission identified in
SERAC v. Nigeria, namely the duty to respect, the duty to protect, the duty to promote
and the duty to respect.
4.2.3.1. Duty to respect
459
Information Note (n 775), para 25.
Information Note (n 775), para 26.
461
Information Note (n 775), para 27.
462
Information Note (n 775), para 28.
463
Information Note (n 775), para 29.
464
Information Note (n 775), para 30.
465
Information Note (n 775), para 31.
460
78 | P a g e
198.
According to the African Commission, the obligation to respect entails that states
should not interfere in the enjoyment of human rights. It signifies that there should be
respect on the part of the state for ‘right-holders, their freedoms, autonomy, resources,
and liberty of their action’.466 The implication of this in the context of climate change
is that states refrain from activities that endanger or threaten the environment and
thereby interfere with the rights of individuals and peoples. The Commission’s State
Reporting Guidelines and Principles further state that States Parties are expected to
ensure protection of individuals and peoples ‘from activities having the effect of
degrading or spoiling the soil, water, fauna and flora and the air of the physical
environment.’ 467 One aspect of this obligation is the duty of the state to respect the
right to a safe environment as enunciated in SERAC v Nigeria.468 As established in the
State Reporting Guidelines and Principles, at the minimum, ‘the duty to respect entails
that the State should not interfere …with the enjoyment by people of this right.’469
Also, in line with this obligation, they must avoid discrimination and retrogressive
measures in the implementation of climate mitigation, adaptation and finance.
199.
States in Africa must avoid the expropriation of resources of vulnerable groups for
climate actions without appropriate consultation and consent of those belonging to such
communities, and without adequate compensation. They must respect the right to FPIC.
In Front for the Liberation of the State of Cabinda v Republic of Angola, the African
Commission affirmed its jurisprudence that the state’s general role with respect to
property rights is ‘to respect and protect this right against any form of encroachment,
and to regulate the exercise of this right in order for it to be accessible to everyone.’470
Hence, it is important that states avoid expropriation without fair compensation while
implementing climate actions, and that projects which are deemed to be in the public
interest for which expropriation is allowed, are subject to strict criteria.
200.
Additionally, in relation to the obligation to respect, states must end the current and
avoid future climate acts that are harmful to human livelihood and environment. In that
sense, states must respect the ‘do no harm’, ‘preventive principle’, and precautionary
principle while making decisions on climate change-related projects and or action.
201.
The no-harm principle, as established in Trail Smelter and confirmed by later
international authorities,471 requires that no State has the right to use or permit its
territory in a manner that causes serious injury to the territory of another or the
466
Ogoniland case (n 490 above), para 45.
Under general principles of international law, this obligation is framed in terms of the ‘responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond
the limits of national jurisdiction.’ See United Nations Conference on Environment and Development. Rio Declaration
on Environment and Development, 1992, Principle 2, and United Nations Conference on the Human Environment,
Stockholm Declaration on the Human Environment, 1972, Principle 21.
468
SERAC v Nigeria, para 52.
469
State Reporting Guidelines, para 44, p. 32.
470
Communication 328/06 Front for the Liberation of the State of Cabinda v Republic of Angola November 5, 2013.
471
Trail Smelter (United States v. Canada) (1938 and 1941) 3 R.I.A.A. 1905; also see Advisory Opinion on the
Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. Rep., 29, (Jul. 8) (Nuclear Weapons Advisory
Opinion).
467
79 | P a g e
properties or persons therein.472 The preventive principle emphasises the State’s duty
to take proactive steps to minimise the risk of damage. As stated in Pulp Mills,
international law requires States ‘to use all the means at their disposal in order to avoid
activities which take place in their territory or any area under its jurisdiction, causing
significant damage to the environment of another State.’473 The precautionary principle
as reflected in Article 3 of the UNFCCC demands that the lack of full scientific
certainty should not be used as an excuse for not anticipating, preventing or minimising
the causes of climate change and mitigating its adverse effects.
4.2.3.2. Duty to protect
202.
In discussing the obligation to protect, the African Charter enjoins the state to adopt
measures, including legislation, and provide effective remedies in protection of right
holders ‘against political, economic and social interferences’. It further requires the
regulation of non-state actors to ensure that their operation does not hinder the
realisation of rights.474 In the Kilwa decision, one reason why the African Commission
found a violation of Article 1 of the African Charter is because the State ‘failed not
only to investigate and punish the involvement of the Anvil Mining Company but also
to provide redress for the victims against the Company for the role it played in the
perpetration of the violations.’475
203.
In line with the 2023 Information Note on Climate Change and the Guiding Principles
on Business and Human Rights (2023 Information Note),476 states’ duty to protect
against human rights impacts arising from business activities includes the duty to
protect against foreseeable impacts related to climate change.477 In that wise, they
should adopt ambitious Nationally Determined Contributions (NDCs) and necessary
legislation to implement it; ensure that domestic and international measures to address
climate change consider human rights-related impacts of climate change; demand that
all business enterprises domiciled or operating in their territory and jurisdiction take
effective measures to combat climate change and related impacts on human rights;
formulate legislation that requires business enterprises to conduct human rights and
climate change due diligence throughout their operations. They should adopt a range
of regulations to discourage greenwashing and undue corporate influence in the
political and regulatory sphere in this area, and to support the actions of human rights
defenders.478
472
As above.
Case Concerning Pulp Mills on the River Uruguay, Argentina v Uruguay, Judgment on the merits, ICGJ 425
(ICJ 2010), 20th April 2010, United Nations [UN]; International Court of Justice [ICJ] 101.
474
Ogoniland case (n 490) 46.
475
Kilwa decision (n 687).
476
Information Note (n 775).
477
Information Note (n 775), para 7.
478
Information Note (n 775), paras 8 and 9.
473
80 | P a g e
204.
The obligation to protect requires positive acts of states to enact and apply climaterelated laws in the protection of the rights of populations faced by climate change. It
also requires the removal of all obstacles that inhibit the enforcement of laws and
regulations. In this wise, some states in Africa have taken the first steps by inserting
the protection of climate in their Constitution or climate-specific laws,479 while other
states are implementing carbon tax laws and policies to address carbon emissions.480
205.
States’ obligation to protect individuals and groups extends to foreseeable threats to
human rights related to climate change, such as an increased risk of flooding and sea
level rise and strengthening adaptation measures. In that regard, the jurisprudence of
the European Court of Human Rights offers some indication of how a failure to take
measures against foreseeable risks could possibly amount to a violation of human
rights. In Budayeva and Others v. Russia, the Court found a violation of the right to
life in a case where State authorities had failed to implement land-planning and
emergency relief policies while they were aware of an increasing risk of a large-scale
mudslide. The Court also noted that the population had not been adequately informed
about the risk.481
206.
This obligation requires that climate adaptation and mitigation, and other actions, must
be designed and implemented to avoid a threat to, or breach of, human rights. They
must have due regard for access to lands and resources used for subsistence and other
important cultural and economic purposes of populations in vulnerable situations, such
as women, Indigenous Peoples, people living with disabilities, youth and the displaced.
207.
The obligation entails the enactment and implementation of appropriate and adequate
social protection regimes to address the peculiar circumstances of populations who
have suffered adverse consequences of climate change. In this wise, states should ratify
the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Citizens to Social Protection and Social Security, as it offers the legal standard to
ensure that social protection is available, accessible, adequate, affordable and
transparent’, especially to groups in vulnerable situations as discussed in the relevant
section above.
208.
States have obligations to ensure that appropriate legislation and other measures are
implemented to regulate the activities of the non-state actors in the extractive sector
with the view of reducing and ultimately eliminating the emission of greenhouse gases
in that sector. Yet, while policy measures put in place for implementing just transition
having regard to the significance attached to the right to development under the African
Charter and indeed in climate change treaties for developing countries with aim of
limiting GHGs emissions and eventually phasing our fossil fuel development, this
obligation should not be read as excluding the provision of licence to extractive
industries for fossil fuel development.
479
See, for instance, sec 44 of the Tunisia Constitution of 2014 and 2016 amended Constitution of Zambia; see
generally Jegede (n 768).
480
For example, South Africa Carbon Tax Law 2019; see Nemavhidi & Jegede (n 154).
481
Budayeva and Others v. Russia, European Court of Human Rights (ECHR), No. 15339/02.
81 | P a g e
209.
States in Africa must adopt necessary measures to integrate climate concerns in the
implementation of Resolution 367 (LX) of the African Commission, which calls for
the upholding of the African Charter in the Extractive Sector in the context of achieving
the purport of Article 21(4) of the African Charter on the right to free disposal of wealth
and natural resources. The resolution calls for the adoption of legislative measures that
cover the whole production cycle of the extractive industries, from the start of
exploration and environmental impact assessment, to the granting of a mining license,
the local beneficiation of the processes of the extractive industries, fiscal provisions,
fund application up to mine closure and rehabilitation.482
210.
Resolution 367 requires states to put in place legislation on measures to be taken by
non-state actors to ensure that host communities participate in and benefit from
decision-making processes affecting them and their livelihoods or environment,
including issues such as accountability of non-state actors and fair compensation. The
processes and measures must clearly not only serve the interest of host communities
but should also include climate change impact assessment and serve the long-term
interest of a safe climate.
211.
The Resolution calls for the application of a human rights approach and relevant
environmental standard for protecting individuals and communities that are dependent
on artisanal mining, with particular attention to the rights of children, women,
indigenous populations/ communities and other groups in vulnerable situations.
Effective implementation of the duty to protect also entails the establishment of
effective monitoring and enforcement mechanisms. Furthermore, it also entails the
establishment of regulations on waste disposal. As envisaged in the State Reporting
Guidelines and Principles, states are expected to put in place measures for protecting
people from ‘environmental degradation and pollution …and environmentally
compatible waste disposal system tailored to various industries.’ It further provides that
‘the acceptable waste disposal standards appropriate to various sectors or industries
should be legally established and strictly enforced. States should put in place the
necessary mechanisms for monitoring compliance with the established standards and
ensuring that illegal disposal of waste by companies is penalised.’
212.
States have the obligation to ensure that the energy transition is just, in particular,
taking into consideration the interests and rights of workers in the fossil-based energy
sector in Africa483 and the right to development and achieve an adequate standard of
living, including through addressing access to electricity to nearly 600 million people
without access on the continent. Energy transition in developing countries with high
dependence on fossils faces more challenges than in developed countries with
diversified economies and social protection.484 For instance, despite the increasing
ACHPR ‘367 Resolution on the Niamey Declaration on Ensuring the Upholding of the African Charter in the
Extractive Industries Sector’, ACHPR/Res.367(LX)2017.
483
Jegede (n 167).
484
E Morena and others Mapping Just Transition(s) to a Low-Carbon World Just Transition(s) (United Nations
Research Institute for Social Development 2018) 1-36.
482
82 | P a g e
criticism of the fossil-based energy sector, there are very few jobs in the renewable
energy sector in Africa compared to other regions of the world.485 The International
Labour Organisation (ILO) Guidelines for a just transition towards environmentally
sustainable economies and societies for all offer some clarity on the need to balance
economic transition with rights, and urge the need for social dialogue, an appropriate,
coherent and stable policy framework and decent work for all during transition.486
4.2.3.3 Duty to promote
213.
The obligation to promote human rights entails that the state should ensure ‘that
individuals are able to exercise their rights, for example, by promoting tolerance,
raising awareness, and even building infrastructures’.487 States in Africa have an
obligation to promote by integrating climate change education with a focus on human
rights in curricula at all levels of formal education. The obligation to promote includes
the creation of awareness about climate change and human rights across sectors so that
the public has accessible, affordable and understandable information regarding the
causes and consequences of the global climate crisis. In that regard, states in Africa
have the obligation to support national human rights institutions and civil society
measures and programmes to increase awareness about climate change and its adverse
consequences. Awareness raising about the probability of increased disasters, such as
floods or cyclones, and disaster response should also fall under this obligation.
214.
In terms of the 2023 Information Note, states should promote measures that minimise
the impacts of extreme events, such as droughts and floods, especially on populations
in situations of poverty and vulnerability; ensure that the transition to a zero-carbon
economy is just and rights-based.488 This could include the building of infrastructure
that could include sea walls, to protect the right to housing, property and prevent
displacement of people from low-lying areas.
215.
States in Africa, as an essential aspect of the obligation to promote, must create national
committees and commissions on climate change, where none exist, to advance
education and awareness about climate change and its adverse consequences, including
loss and damages and advance policy measures for adaptation and resilience building.
International Renewable Energy Agency ‘Renewable Energy and Jobs: Annual review’ (2018) available at
http://irena.org//media/Files/IRENA/Agency/Publication/2018/May/IRENA_RE_Jobs_Annual_Review_2018.pdf
(accessed 15 December 2022).
486
International Labour Organization Guidelines for a Just Transition towards environmentally sustainable
economies and societies for all (ILO 2015) (ILO Guidelines).
487
As above.
488
Information Note (n 775) 8f and g.
485
83 | P a g e
4.2.3.4 Duty to fulfil
216.
The obligation to fulfil, according to the African Commission, requires the state to
mobilise ‘its machinery towards the actual realisation of the rights’.489 They should
take steps to safeguard the climate and to adapt to the inevitable consequences of
climate change that are already manifesting. States, therefore, have to develop
comprehensive plans of how to realise development that is necessary for human wellbeing within the confines of the carrying capacity of the environment. They should do
a comprehensive mapping of the opportunities for sustainable development and
prioritise sustainable development projects, including by leveraging Articles 21 and 22
of the African Charter on the right to natural resources and the right to development.
States in Africa need to mobilise funds and deploy revenue adequately to address
climate change and its adverse consequences. Funds generated locally and nationally
for climate mitigation measures, for instance, a carbon tax, should serve a
hypothecation purpose of boosting human rights in the climate context.490 Funds
generated for adaptation and loss and damage should be deployed to respond to the
needs of affected populations, in particular, at the local level. All adaptation and
mitigation plans and policies should be human rights-compliant.
217.
The African Commission aptly puts it in SERAC v. Nigeria, as noted above, that this
also requires ‘the state to take reasonable and other measures to prevent pollution and
ecological degradation, to promote conservation, and to secure an ecologically
sustainable development and use of natural resources.’491As further enunciated in the
State Reporting Guidelines and Principles, ‘With respect to Article 24, the duty to fulfil
entails that States make the necessary investments for the conservation and
improvement of the environment.’
218.
Creating necessary conditions for fulfilling rights also includes the review of their
existing trade and investment agreements, and investor-state dispute settlement
mechanisms, not to constrain or restrict efforts or action in relation to climate changerelated impacts on human rights and the environment.492 It means that climate concerns
should be integrated in all steps required for local and foreign corporate actors to
develop and have access to and use natural resources, and in all development planning.
This includes the provision for avenues that enable members of the public and local
people to have shares in extractive industries.
219.
Integral to the duty to fulfill in the context of climate change is the requirement to a)
institute preparedness and effective disaster response capabilities for prompt provision
of rescue and relief support, with arrangements tailored to the needs of the most
vulnerable, b) institute measures that enhance the resilience and adaptation of
vulnerable socio-economic sectors including agriculture, fishing, pastoralism, and c)
advance development initiatives drawing on the sustainable use of natural resources as
489
Ogoniland case (n 490) para 47.
Nemavhidi and Jegede (n 154).
491
SERAC v. Nigeria, para 52.
492
Information Note (n 775) see generally sect 3.
490
84 | P a g e
critical step for enhancing capacity of individuals and peoples for adaptation to climate
change.
4.2.3.5 Obligation of major GHG-emitting states and for international cooperation and
extraterritoriality
220.
Given that African states bear negligible responsibility for climate change, the analysis
of legal obligation for human rights impacts of climate change necessarily requires
taking account of the obligation that those who bear the most responsibility for climate
change bear. Indeed, the international legal instruments on climate change supported
by the IPCC’s scientific evidence recognize the differentiated responsibilities of states
with the understanding that states that account for most of the GHG emissions bear
proportional responsibility for mitigation, adaptation and loss and damage. As such and
in respect to the human and peoples’ rights impacts of climate change, which is
expressed most acutely in Africa despite its near-zero contributions to GHG emissions,
this differentiated responsibility is not without legal consequences to those historically
most responsible for climate change. They bear higher legal obligations both for
adopting measures necessary for urgent mitigation measures at scale and speed
that meet the Paris Climate Change targets and towards addressing the
unavoidable impacts of climate change on human and peoples’ rights.
221.
States Parties to the African Charter bear the obligation of advancing effective
international cooperation for the implementation of commitments made,
particularly by developed country parties and other developed countries, both under
international law norms relating to the environment and those specific to climate
change. It is thus incumbent on States Parties to the African Charter, in discharging
their obligations under Articles 1 and 24, particularly in light of the threat that climate
change poses to the rights enshrined in the Charter, to adopt strategies and plans that
ensure, both individually and collectively through international cooperation, the
effective implementation of the obligations borne by developed country Parties and
other developed States under the UNFCCC and the Paris Agreement. These obligations
include the provision of financial resources for adaptation in developing countries, as
well as support for technology transfer, capacity-building, and measures to address loss
and damage.
222.
While there are legitimate concerns about extraterritoriality due to the connection of
human rights obligations to the territory of states, extraterritorial obligations are of
particular significance to the implementation of actions to address the adverse
consequences of climate change and response measures. In the particular context of
climate change, it has been demonstrated how key provisions of African regional
human rights instruments can apply extraterritorially to address climate change.493
AO Jegede ‘A Tilapia Cannot Swallow a Whale: Climate Crisis and The Imperative of Extraterritorial
Accountability under the African Charter’ 2024, available at https://opiniojuris.org/2024/05/01/beyondterritoriality-symposium-on-jurisdictional-hooks-for-extraterritorial-human-rights-obligations-a-tilapia-cannot493
85 | P a g e
223.
Extraterritorial obligations among states in Africa and beyond entail taking steps
through international assistance and cooperation to cope with climate change issues.
Such steps should include technical cooperation, financial assistance and institutional
capacity-building for, inter alia, land administration, knowledge-sharing and assistance
in developing relevant national policies and transferring appropriate technology.
224.
In the context of climate change in which GHG emissions play the leading role in
causing major harm to the climate system and the environment thereby curtailing
human and peoples’ rights, the obligations of states parties to the African Charter need
to be pursued, having regard to, and the obligation of international cooperation and
extraterritoriality cannot be separated from, the principle of common but
differentiated responsibilities and respective capabilities (CBDR-RC).494 The
obligation that African states bear with respect to international cooperation requires
them to advance the international legal regime of responsibility based on the scale of
responsibility that those most responsible for GHG emissions bear. This is in terms of
the obligation that those who bear the most responsibility for climate change as
established in climate change treaties and the work of the IPCC both for leading GHG
emission reduction through adopting deep, rapid and sustained GHG emission
reduction measures capable of meeting the Paris Agreement target of limiting global
warming to well below 2°C preferably at 1.5°C and providing funding and transfer
technology towards the implementation of adaptation and loss and damage measures
by African states.495
4.2.3.6 Obligations of businesses
225.
Resolution 367 on the Niamey Declaration on Ensuring the Upholding of the African
Charter in the Extractive Industries Sector,496 the Explanatory Note to the State
Reporting Guidelines on the Contents of the Rights and Obligations under Articles 21
and 24 of the African Charter,497 the Advisory Note by the African Commission,
through its Working Group on Extractive Industries, Environment and Human Rights
in Africa States,498 the United Nations Guiding Principles on Business and Human
Rights,499 UNGP’s 10+ A roadmap for the next decade of business and human rights,
swallow-a-whale-climate-crisis-and-the-imperative-of-extr/ (accessed 30 March 2024); Jegede (n 300) 182-195;
Jegede (n 308) 58–82.
494
As Judge Sebutinde noted in her separate opinion, ‘the principle of CBDR-RC is a cornerstone principle of
international law which aims to ensure fairness in how the burden of climate action is shared.’ Para 9. It is established
in international law, including under Principle 23 of the Stockholm Declaration, Principle 7 of the 1992 Rio
declaration, Article 3(1) UNFCCC; Article 3 of the Kyoto Protocol, and Article 4(4) of the Paris Agreement.
495
Note 43, para 11-12.
496
ACHPR 367: Resolution on the Niamey Declaration on Ensuring the Upholding of the African Charter in the
Extractive Industries Sector, ACHPR/Res. 367 (LX) 2017.
497
Kilwa Decision (n 687).
498
African Commission on Human and Peoples’ Rights Extractive Industries & Environment in Africa Newsletter
Extractive Industries & Environment in Africa Issue 1 October 2018.
499
United Nations ‘Guiding principles on business and human rights: implementing the United Nations ‘Protect,
Respect and Remedy’ framework’(2011).
86 | P a g e
500
the Information Note on Climate Change and the Guiding Principles on Business
and Human Rights,501 as well as the emerging jurisprudence of the African
Commission are useful in sketching the responsibilities of businesses in the context of
addressing the impact of climate change on human rights in Africa.
226.
States are the primary obligation bearers under the African Charter and related
instruments.502 In unpacking the implications of climate change for human rights,
however, requiring responsibility from non-state actors towards rights holders is
consistent with the African Charter.503 This possibility is anchored on Article 27 of the
African Charter, which provides for the duties of individuals and its sub-provision 2,
which lays down the obligation to exercise rights ‘with due regard to the rights of
others’. The reasoning is that if duties are required of individuals, then it is nothing
legally strange to require similar obligations of corporations and companies.504 This is
more so as their power and resources have a direct impact on human rights.
227.
Businesses operating in Africa have a negative duty to respect human rights in the
climate change context by avoiding activities that aggravate the climate crisis. Similar
to the obligation of states to respect rights, corporations must avoid harm to the climate
or actions in response to climate change that negatively impact on human rights by
observing the ‘do no harm’, ‘preventive principle’ and precautionary principle while
making decisions on climate change-related projects or actions. These are recognised
by the UN Guiding Principles on Business and Human Rights.505 Also, in international
environmental law, these principles do not apply only to state actors. In particular, the
Information Note clarifies which actions should be taken by States and businesses in
relation to embedding human rights considerations into climate change policies,
processes and actions.506 In terms of the Information Note, businesses should take
responsibility for climate change-related impacts and not cause, contribute to or be
directly linked to human rights impacts arising from business activities.507
228.
To fulfil these responsibilities, among other measures they are to: integrate climate
change considerations into policies, processes, governance structures, decisions and
operations so as to identify, prevent, mitigate and account for adverse human rights and
environmental impacts, and do so throughout all their operations; develop and publish
policies and action plans regarding actual and potential climate change-related impacts
on human rights and the environment; conduct effective and meaningful consultation
‘UNGPs 10+ A roadmap for the next decade of business and human rights 2021’ available at
https://www.ohchr.org/sites/default/files/2021-12/ungps10plusroadmap.pdf (accessed 10 April 2024).
501
Information Note (n 775).
502
For instance, see the preamble to Resolution 367 ‘Reiterating the primary responsibility of States Parties to
prevent and provide redress in accordance with the African Charter for all forms of violations of human and peoples’
rights, including violations involving non-state actors’.
503
See Speech delivered during the inaugural General Assembly of African Coalition for Corporate Responsibility
- Commissioner Solomon Ayele Dersso, Chairperson of the Working Group on Extractive Industries, available at
http://www.achpr.org/ news/2016/07/d226 (accessed 10 April 2024); Explanatory Note (n 846).
504
Explanatory Note (n 846), para 56.
505
UN Guiding Principles on Business and Human Rights (n 872).
506
Information Note (n 775), para 2.
507
Information Note (n 775), paras 15 and 16.
500
87 | P a g e
with all relevant stakeholders; ensure compliance with FPIC; take urgent remedial
action, including ceasing any climate change-related human rights impacts that they
cause or contribute to; and use their control over their business relationships to prevent,
reduce or mitigate any climate change-related human rights impacts that they
contributed to or are directly linked to through operations, products or services.508
229.
The Kilwa decision is not a climate change decision, but the African Commission
affirms in that decision the minimum obligation of companies not to actively violate or
support the violation of human rights.509 Based on the reasoning in that decision, nonstate actors should avoid actions or operations that are detrimental to the climate, as
this will pose threats to the protection of rights guaranteed in key human rights
instruments under the African human rights system. Businesses should not only refrain
from deliberate climate change-related acts that pose threats to rights, but they must
also ensure continuously that their acts or operations are in full compliance with
internationally accepted commitments towards the reduction of greenhouse emissions
and ‘stabilisation of greenhouse gas concentrations in the atmosphere at a level that
would prevent dangerous anthropogenic interference with the climate system’.510
230.
To meet their responsibility to respect human rights, business enterprises should
conduct human rights due diligence that addresses the adverse climate change-related
human rights impacts that the business enterprise may cause or contribute to through
its own activities, or which may be directly linked to its operations, products or services
by its business relationships.511 Businesses should take the necessary steps across their
activities and supply chains to cease or prevent any contribution they make to human
rights harms as a result of climate change. Further, they should use (and seek to
increase) leverage to influence businesses with which they have relationships to
prevent or mitigate any climate change-related harms (for instance to ensure
compliance with climate and environmental standards).512
231.
Corporations have a duty to protect rights, which requires that they put in place own
rules and regulations that protect human rights in climate change actions. It also entails
that businesses have the responsibility to comply with legislation on special measures
to address climate change and its adverse consequences on human rights. They should
take the required measures for preventing their activities from harming the climate and
put in place mechanisms for rectifying any negative human rights impacts arising from
their activities or actions. Corporations have the obligation to reduce greenhouse gas
emissions from their own activities and their subsidiaries; reduce greenhouse gas
emissions from their products and services; minimize greenhouse gas emissions from
their suppliers; publicly disclose their emissions, climate vulnerability and the risk of
stranded assets; and ensure that people affected by business-related human rights
508
Information Note (n 775) para 17 a-g.
Kilwa decision (n 687).
510
UNFCCC (n 2) art 2.
511
Information Note (n 775), para 17.
512
Information Note (n 775), para 17 a-e.
509
88 | P a g e
violations have access to effective remedies.513 Considering their means, corporations
have critical information and know-how regarding the implications of their activities
on the climate and the adverse consequences on human rights, hence, they have the
responsibility to freely give necessary information about projects to communities and
groups to be impacted, conduct all necessary assessment including climate impact
assessment in a consultative manner and with respect for the rights of persons and
groups in vulnerable situations in Africa. Such assessments should be carried out by
experts in the field of climate change, preferably impact assessors registered and
regulated through law to ensure their independence and objectivity.
232.
The obligation of corporations to protect rights in the climate change context extends
to activities or actions of those that act on their behalf or to their benefit in Africa.
Accordingly, they should ensure that such activities or climate response actions
undertaken on their behalf or for their benefit do not cause harm to the climate or result
in interference in the enjoyment of protected rights. Where such activities or actions
result in curtailment or interference with the rights protected in key human rights
instruments, the company on whose behalf or to whose benefit those activities or
actions have been taken should bear applicable responsibility.
233.
Businesses are required to track the effectiveness of their responses to climate change.
In this wise, it is their responsibilities in Africa to seek whether climate change-related
human rights impacts are being properly addressed in their operations, communicate
how they address their human rights impacts externally, adopt procurement policies
and practices which consider climate change-related impacts on human rights and the
environment; ensure their value chains and practices are in line with the goal of
achieving a just transition to a zero-carbon economy; treat environmental human rights
defenders and climate activists as critical partners, and ensure that the direct or indirect
actions by businesses do not harm them.514
234.
The obligation of businesses to promote includes supporting awareness creation about
climate change and human rights across sectors and aiding the accessibility and
affordability of information by the public about climate change and its adverse
consequences including loss and damages. In terms of the 2023 Information Note,
businesses enterprises should act responsibly and promote sustainable consumption,
prevent greenwashing or undue corporate influence in the political and regulatory
sphere in this area.515 They should promote and ensure the linkage of incentives for
directors and executives with positive performance in combating climate change;
phasing out both the use of fossil fuels and the production of greenhouse gas emissions,
publicly provide information that is sufficient to evaluate the adequacy of their
response to climate change-related human rights harms and avoid contributing to
environmental degradation that exacerbates climate change, such as deforestation.516
513
Expert Group on Climate Obligations of Enterprises, Principles on Climate Obligations of Enterprises: Legal
Perspectives for Global Challenges (Expert Group on Climate Obligations of Enterprises, 2018).
514
Information Note (n 775), para 17 a-e.
515
Information Note (n 775), para 18.
516
Information Note (n 775), para 17 a-e.
89 | P a g e
235.
The obligation of corporations to fulfil rights signifies that they must ensure that
proposed projects empower the right holders to develop, have access to the benefits, in
particular of climate response measures; support States in Africa to mobilize funds
and implement financed projects in accordance to human rights standards. They must
cooperate to engage all stakeholders in information sharing about science of climate
change, African indigenous knowledge system, African technology and practices that
are helpful in building a climate resilient and sustainable future and advancing human
rights in climate change context. In this regard, and based on the State Reporting
Guidelines on Articles 21 & 24, corporations can also have positive obligations to fulfil
socio-economic rights by realising development.517 The 2023 Information Note
requires International, national and regional financial institutions to facilitate access to
information that is sufficient to evaluate the adequacy of their response to climate
change-related human rights harms and commit to transparency in the communication
of scientific findings, as well as ensure meaningful stakeholder consultation;518 take
collective action to mitigate climate change-related impacts on human rights and the
environment and act to contribute to achieving a just transition to a zero-carbon
economy without offsetting.519
236.
Foreign corporations operating in Africa have an obligation to support the efforts of
the states to seek for international support and invest in the transfer of zero-carbon,
low-carbon and high-efficiency technologies from wealthy to less wealthy States;
building capacity; investment in research on climate change, energy transition and loss
and damages; and ensuring fair, legal and durable solutions for migrants and displaced
persons.
V The Role of the African Commission
237.
Three domain of actions exist for the African Commission in addressing the adverse
consequences of climate change on human rights: (1) The promotional functions of the
African Commission – state reporting, resolutions, promotional visits, seminars and
conferences, publications and dissemination of information, national human rights
institutions, special mechanisms; (2) Individual and state based protective mandates in
the form of communication; (3) Collaboration with AU Operational Structures and
Other platforms.520
E Boshoff ‘The role of human rights soft law instruments in clarifying the obligations of fossil fuel companies
for climate change interventions in Africa’ in AO Jegede & O Adejonwo (eds.) Climate change justice and human
rights: An African perspective (2022) Pretoria University Law Press, 13-34.
518
Information Note (n 775), para 21.
519
Information Note (n 775), see generally section 4; para 22.
520
AO Jegede ‘Climate change in the work of the African Commission on Human and Peoples’ Rights’ (2017)
31(2) Speculum Juris 136-150.
517
90 | P a g e
5.1.
Promotional Functions
238.
The promotional functions of the African Commission – state reporting, general
comments and resolutions, promotional visits, seminars and conferences, publications
and dissemination of information, national human rights institutions and NGOs, special
mechanisms, and the protective mandate in the form of individual and interstate
communications – can be utilised to develop and apply the climate change-human
rights framework in Africa.
239.
State reporting is an important process in the hands of the African Commission that
can be used to review and strengthen the work of the state in relation to climate change.
The African Commission should amend its reporting guidelines to accommodate the
adverse effects of climate change and implications for human rights or initiate a new
reporting guideline for that purpose. For instance, the Tunis Reporting Guidelines have
no reference to climate change.521 Yet, climate change has an impact on a number of
the rights highlighted for reporting in the Guidelines. Effecting such an amendment
will guide states in documenting the realities of the adverse effects of climate change
and will give the African Commission the opportunity to offer concluding
observations, which will guide states in their interventions and civil society in their
advocacy in that area. The sustainability dimensions of some rights, such as the right
to dispose of wealth and natural resources and the right to development, should be
elaborated in these guidelines.
240.
At the African regional level, resolutions and general comments can play an important
role in elaborating on the contents of specific rights or obligations, similar to the
function of General Comments adopted by UN human rights treaty bodies.522 The
CESCR, for example, is in the process of developing a General Comment on
Economic, Social and Cultural Rights and Sustainable Development, whereas the UN
CRC has developed a General Comment on children’s rights and the environment with
a special focus on climate change. The Commission can draw inspiration from such
developments to undertake similar work in the African system. In the past the African
Commission has passed notable resolutions that include adoption of resolution on
extreme weathers in eastern and southern Africa, the rights to natural resources of local
and indigenous people, and on climate change.523 Hence, there can be further
resolutions and general comments to clarify and amplify the obligations of states
relating to human rights in the context of climate change. Resolutions can also address
specific states where allegations of violations of human rights linked to climate change
are rampant or dire.
521
State Party Reporting Guidelines for Economic, Social and Cultural Rights in the African Charter on Human and
Peoples’ Rights (Tunis Reporting Guidelines) 2010.
522
Viljoen (n 50) 79.
523
Resolution on the human rights impacts of extreme weather in Eastern and Southern Africa due to climate change
- ACHPR / Res. 417 (LXIV) 2019.
91 | P a g e
241.
Through promotional visits, Commissioners can sensitise high-ranking officials and
organs of government on the implications of climate change for human rights and the
need to ratify and comply with applicable regional and international treaties and
develop national frameworks. The agendas of the African Commission and activity
reports contain several references to its aspiration to host seminars on a variety of
topics,524 hence, conferences relating to climate change and human rights can be
conducted in collaboration with other institutions, such as the Committee on the
Welfare of the Child. The Commission can also include a standing item on the Agenda
of its Public Sessions for engagement around the topic of climate change. The aim of
publication and information dissemination (PID) as a promotional activity of the
African Commission is to educate and ensure greater visibility for its activities.525
Through PID, the African Commission can provide information on climate change and
human rights on its website and ensure the distribution of information on climate
change and human rights through electronic means to NGOs enjoying observer status
with the African Commission.
242.
Given their affiliate status with the African Commission, the national human rights
institutions (NHRIs) can be invited to make presentations in the African Commission
sessions on the promotion and protection of human rights at national level.526
Accordingly, the NHRIs can include reports on the vulnerability of populations to the
adverse impacts of climate change in their presentations. NGOs with observer status
before the Commission can similarly make presentations during the Commission’s
public session on the state of human rights in Africa. The Commission can collaborate
with NHRIs and NGOs that have a specific interest and ongoing work on climate
change to support the Commission in fulfilling its mandate.
243.
More than it is presently utilised, there is potential in the role of special rapporteurs
and working groups of the Commission to aid the development of the climate change
human rights nexus. Due to the intersectional nature of climate change and human
rights, rapporteurs and working groups can work together to mainstream climate
change in their activities and exchange notes on their findings in relation to climate
change. While the WGEI and the WG ECOSOC were tasked with preparing this study,
climate change is also very pertinent to the work of the WGIP, the Special Rapporteur
on Human Rights Defenders and Focal Point on Reprisals in Africa, the Special
Rapporteur on Freedom of Expression and Access to Information, the Special
Rapporteur on the Rights of Women in Africa and the Working Group on the Rights
of Older Persons and People with Disabilities in Africa. In order to ensure that there is
someone to lead further work and set the agenda of the Commission on this topic, and
ensure that it is mainstreamed into activities, one possibility is an expansion of the
mandate of the current WGEI, to focus on sustainable development, environment and
future generations, which would enable it to deal with topics ranging from extractive
industries, to climate change, and the rights to development and peace, which are
524
Viljoen (n 50) 382.
Viljoen (n 50) 383.
526
ACHPR ‘Resolution on Granting Observer [Affiliate] Status to National Human Rights Institutions on Africa’,
adopted at the Commission’s 24th session, Banjul, the Gambia, 22-31 October 1998, para 4(a).
525
92 | P a g e
currently neglected as they do not fit under any specific mandate of the Commission.
Alternatively, creating a mandate holder (an independent expert or rapporteur) on
Climate Change and Human Rights to coordinate and drive the work of the
Commission on Climate Change. As an interim measure, a focal point, similar to the
focal point on conflict and human rights or on transitional justice, might be appointed
to coordinate and mainstream climate change in the work of the Commission.
5.2.
Protective Mandates
244.
Both individual and inter-state communications can be used to advance the link
between climate change and human rights in Africa. Under the African human rights
system, individual and interstate communications are possible before the Commission
by applicants other than states under Article 56 of the African Charter, while an interState procedure is provided for explicitly in Article 47 of the African Charter.
245.
The term climate litigation is often vague due to the multicausal nature of climate
change. Climate change litigation can be narrowly defined as litigation ‘in which the
party filings or tribunal decisions directly and expressly raise an issue of fact or law
regarding the substance or policy of climate change causes and impacts.’527 However,
in the African context, the literature has used a wider definition, given that issues of
climate change often underlie cases, even if they are not directly and expressly raised.
In its broader formulation, climate change litigation therefore would include cases that
refer to climate impacts as one among many consequences of a violation, or that
concern the consequences of climate change, such as displacement or damages from
extreme weather events, even when climate change is not explicitly mentioned.528 In
other words, from a human rights angle, climate change litigation includes matters that
raise procedural and substantive human rights issues around the consequences of
climate change, and the lack and/or inadequacy of formulation or implementation of
law and policy on climate mitigation and adaptation. Strategic climate litigation can
spur accountable, just and ambitious rights-based climate action in Africa's unique
context. The African Commission can creatively employ its mandates to secure climate
justice by applying a human rights approach.
246.
Examples of the possibility of individual communications on climate change human
rights litigation can be found at the UN level and regional levels, although they are not
free from challenges. At the UN level, in particular, the decision of the UN Human
Rights Committee (HRC) in Teitiota v New Zealand (2020 Teitiota decision) has
considered the status of ‘climate refugees’ in the context of human rights. Also, more
recently in 2021, the UN Committee on the Rights and Welfare of the Child in Sacchi
D Markell and JB Ruhl ‘An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or
Business as Usual?’(2012) 64 Florida Law Review 1, 15, 27.
528
E Boshoff, 'The Prospects and Challenges of Litigating Climate Change Before African Regional Human Rights
Bodies' in Kim Bouwer and others (eds), Climate Litigation and Justice in Africa (Bristol University Press 2024), 125126.
527
93 | P a g e
and others v. Argentina and others (Sacchi decision), delivered a decision in which
the applicants alleged that respondent’s climate policies are causing and perpetuating
climate change. According to the applicants in Sacchi, the State party has failed to take
necessary preventive and precautionary measures to respect, protect, and fulfil
children's rights to life, health and culture, a development that exposes one of the most
vulnerable groups to life-threatening impacts of climate change.
247.
These two cases are a pointer to possibilities, at least, that linking climate change
wrongs to human rights accountability is not strange in the UN human rights treaty
monitoring bodies. At the regional level, early milestones were the 2005 Inuit petition
to the Inter-American Commission on Human Rights alleging that greenhouse gas
emissions from the United States were violating the human rights of the Inuit, and the
Male’ Declaration on the Human Dimension of Global Climate Change. Although the
Inuit petition was ruled inadmissible,529 it was a catalyst for action, including a hearing
on climate change held by the Inter-American Commission in 2006.530
248.
Inter-state communications are not impossible in relation to climate change onsets that
have cross-boundary or extraterritorial consequences among African states. In
Democratic Republic of Congo v Burundi, Rwanda and Uganda (the ‘DRC case’),531
the African Commission in 2003 found a violation by the three respondent states of
various provisions of the African Charter. The decision shows that between one
another, states may initiate a cause of action involving actions of one state which
interfere with the rights of the population in another state.
5.3
Collaboration with AU Operational Structures and other Platforms
249.
The African Commission can advance its mandate through collaborations with
structures and programmes within the AU, which already have climate change as part
of their focus in mainstreaming human rights. Examples include the AU Commission,
AMCEN, PAP, NEPAD, PSC and other structures in relation to the engagement on
climate change.
250.
The African Commission should work out the process to engage in debate and activities
of vital institutions on climate change under the auspices of the UNFCCC to ensure
that human and peoples’ rights of populations in Africa are reflected in their processes.
These bodies include the Subsidiary Body for Implementation (SBI), and the
Subsidiary Body for Scientific and Technological Advice (SBSTA). The work of the
529
Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations
resulting from global warming caused by acts and omissions of the United States on behalf of all Inuit of the Arctic
Regions of the United States and Canada, available at http://www.ciel.org/Publications/ICC_Petition_7Dec05.pdf
(accessed 27 December 2022).
530
HM Osofsky ‘The Inuit petition as a bridge? Beyond dialectics of climate change and
indigenous peoples’ rights’ (2007) 31 American Indian Law Review 675.
531
Communication 227/99 Democratic Republic of Congo v Burundi, Rwanda and Uganda.
94 | P a g e
SBI has been at the heart of all implementation issues under the Convention, the Kyoto
Protocol, and more recently the Paris Agreement. In this respect, its agenda is shaped
around the key building blocks of implementation of all these treaties and
instruments: transparency, mitigation, adaptation, finance, technology and capacitybuilding, and aims at enhancing the ambition of Parties on all aspects of its agenda.
The SBSTA supports the work of the COP, the CMP and the CMA through the
provision of timely information and advice on scientific and technological matters as
they relate to the Convention, its Kyoto Protocol and the Paris Agreement. Key areas
of work for the SBSTA include the impacts, vulnerability and adaptation to climate
change, promoting the development and transfer of environmentally-sound
technologies and conducting technical work to improve the guidelines for preparing
and reviewing greenhouse gas emission inventories.
251.
Finally, the Commission could also engage with structures and strategies highlighted
in the African Mining Vision to ensure that the aspirations under the document do not
hinder climate change-related human rights.
VI Conclusion and Recommendations
6.1 Conclusion
252.
253.
532
Climate change, driven by human-induced greenhouse gas emissions, has emerged to
significantly reshape global weather systems, leading to more frequent and intense
heatwaves, droughts, floods, tropical cyclones, and rising sea levels. Although Africa
collectively contributes virtually negligible percentages to global emissions, it bears a
disproportionate level of the climate change burden. It is among the most vulnerable to
the impacts of climate change. According to the Inter-Governmental Panel on Climate
Change (IPCC) 6th assessment report released in 2022, Africa is among the highly
vulnerable hotspots facing high risks of precipitation variability, flooding, sea-level
rise, heatwaves and water stress.532
Africa is not just one of the regions most affected but also least placed to effectively
manage the consequences of climate change. For reasons of history, including
colonialism and the skewed nature of the process of Africa’s integration into the
international economic system and its marginal place in the system,533 Africa is the
least equipped for adapting to and mitigating the impacts of climate change,534 which
Climate Change 2022: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Sixth
Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2023), pp.
1285–1455, doi:10.1017/9781009325844.011 (“IPCC Africa Chapter”).
533
IPCC, Sixth Assessment Report, Working Group II report asserts that colonialism has exacerbated the effects of
climate change. In particular, historic and ongoing forms of colonialism have helped to increase the vulnerability of
specific people and places to the effects of climate change.
534
Note 1 above.
95 | P a g e
have become more frequent and ferocious over time. As the Inter-American Cout of
Human Rights rightly pointed out, such regions of the world as Africa are most
susceptible to experiencing the most severe consequences of climate change despite
their negligible contribution to climate change, ‘precisely because their means of
subsistence are more climate sensitive, they have fewer resources and capabilities to
address those consequences, they have limited access to basic services and resources,
they usually face greater governance challenges, and they are more likely to experience
violent conflicts.’ 535
254.
The study identified that the impact of climate change on human and peoples’ rights is
multifaceted. There are two pathways through which climate change impinges on
human and peoples’ rights. The first relates to the impact of climate change on the
natural systems that are necessary for a natural environment safe to human wellbeing.
The second relates to the impact of climate change-induced slow-onset or sudden-onset
weather events on individuals and peoples.
255.
The study clearly identified how climate change specifically impacts on specific human
and peoples’ rights. While the main intention is to address climate change, a number
of actions in response to climate change (mitigation and adaptation) that are being
initiated in Africa, namely, the Reducing Emissions from Deforestation and Forest
Degradation (REDD+), and Carbon Tax, Bioenergy and Carbon Capture with Storage
(BECCS), climate finance may also have negative implications on human rights in
Africa.
256.
The study also identified how climate change affects a specific category of people.
While climate change has adverse impacts on all, it affects some people more
disproportionately than others. These include most notably the poor and marginalised
groups, such as indigenous peoples and minorities, as well as those whose livelihoods
depend on the use of land, rain and pasture, such as farming and pastoralist
communities.536 It also affects socially marginalised or vulnerable groups such as
women, those vulnerable on account of their age (children and the elderly), on account
of their physical and psycho-social conditions, namely persons with disabilities and
those vulnerable on account of their legal status, such as migrants, stateless persons,
refugees and asylum seekers. For these categories of people, climate change
accentuates their pre-existing vulnerabilities.
257.
By virtue of Article 1 of the Charter, read with relevant climate change and
environmental treaties and customary international law norms, States Parties bear the
general obligations of prevention, preparedness, response and remedying. Thus, due to
the obligation under Article 1 to adopt relevant measures for giving effect to the rights
535
American Court of Human Rights, para 99 available at https://www.corteidh.or.cr/docs/opiniones/seriea_32_en.pdf
(accessed 12 March 2026).
536
Request by the Pan African Lawyers Union (PALU) for an Advisory Opinion on the Obligations of States with
Respect to the Climate Change Crisis, para 36 available at https://admin.climatecasechart.com/wpcontent/uploads/non-us-case-documents/2025/20250502_99025_petition.pdf (accessed 12 March 2026).
96 | P a g e
and freedoms in the Charter, states bear the general legal obligation to adopt all
necessary measures to safeguard the rights and freedoms in the African Charter from
the threat that climate change poses to the enjoyment and access to these rights and
freedoms. By virtue of Article 24, the obligation includes the obligation to prevent
significant harm to the environment, which entails the duty of due diligence. This
obligation to prevent harm is an obligation that is owed not just to the present
generation but also to future generations.
258.
It has also become clear that there are specific substantive and procedural obligations
that states and businesses bear in the context of climate change. These procedural and
substantive obligations can be deployed or operationalised in the context of climate
change in order to respect, protect, promote and fulfil human rights, including those of
populations in vulnerable situations in Africa.
259.
The African Commission has a useful mandate and tools at its disposal for it to play a
pivotal role in addressing the adverse consequences of climate change on human and
peoples’ rights. There are three main windows to fulfil its role: (1) The promotional
functions of the African Commission – state reporting, general comments and
resolutions, promotional visits, seminars and conferences, publications and
dissemination of information, national human rights institutions and NGOs, and special
mechanisms; (2) Individual and state based protective mandates in the form of
communication; (3) Collaboration with Operational Structures and Programme within
the AU such as the AMCEN, Peace and Security Council and Pan African Parliament
and other platforms.
6.2. Recommendations
260.
In all climate actions, states, non-state actors, individuals, and the African Commission
have an important role to play.
261.
States Obligations require that they:
i. respect, protect, fulfil and promote all human and peoples’ rights and most specifically
Article 24 on the right to environment in both their joint and individual actions. This
obligation should guide their commitments to not only protect the environment but to do
so in a manner that respects human rights and recognises, promotes, and addresses climate
change as an African and global challenge;
ii. take into consideration their international commitments in addressing climate change,
including the obligation of prevention of environmental damage and conservation of the
environment;
iii. consider and apply human rights, noting that climate change and its response measures
may threaten the enjoyment of human and peoples’ rights in Africa;
97 | P a g e
iv. prioritise and invest in advocacy and research on African knowledge systems and
technology on mitigation and adaptation in responding to the climate crisis;
v. take into consideration intersectionality and vulnerability, noting that climate change may
affect populations and groups in Africa differently;
vi. secure the meaningful, informed and effective participation of groups in vulnerable
situations in climate change mitigation and adaptation at all levels and ensure their FPIC;
vii. Advance both individually and within the framework of the AU collectively international
cooperation for ensuring that states, most notably those who bear historical and current
responsibility, adopt more ambitious climate change mitigation and adaptation actions and
make provisions for loss and damage directed to limit the impacts of climate change on
populations in Africa;
viii.
promote and invest in renewable energy sources according to human rights
standards;
ix. put in place appropriate measures at the domestic level to ensure accountability for climate
wrongs and their consequences for human rights;
x. invest in removing barriers to climate change advocacy through measures, including the
protection of environmental and climate activists at the domestic level;
xi. Adopt plans and targeted measures for advancing social and economic transformation as a
critical step for building capacities for adaptation and resilience to the impact of. Climate
change, while pursuing just transition strategies and aligning economic development
strategies and projects with sustainable development;
xii. develop comprehensive social protection policies at the domestic level and ratify and/or
apply, as the case may be, the Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Citizens to Social Protection and Social Security, and other regional
instruments relevant to addressing the impacts on climate change on human and peoples’
rights;
xiii.
utilise and/or support climate finance to address vulnerability and loss and damage
at local levels;
xiv.
promote, initiate and support research on climate related disaster and interface with
mental health and other public health issues that affect enjoyment of human rights, and
ensure that national and local disaster response plans are in place and take into account the
needs of all vulnerable groups;
xv. ensure that national labour laws are in line with international core labour standards and
extend protection to all workers, regardless of occupation or migration status, in the context
of adverse consequences of climate change on human rights;
xvi.
remove vagrancy offenses or decriminalize vagrancy that have been impeding the
mobility choices of internally displaced persons due to climate change and climate changeinduced cross-border migrants within the continent;
xvii.
consider the recognition of the rights of natural entities (rivers, forests, mountains)
and or implementation of ecocide law as a legal approach to prevent and address
unsustainable activities underlying climate change;
xviii.
Remove all hindrances to climate litigation by groups in vulnerable situations,
including ensuring broad standing before the courts;
xix.
Integrate groups in vulnerable situations in prevention and response interventions
into climate change and environmental adaptation, mitigation and resilience-strengthening
policy, programming and finance;
98 | P a g e
xx. make legal interventions through AU level processes and mechanism and implement
measures that are inclusive, preventative and remedial to address climate change;
xxi.
address all traces and practices of modern slavery in the renewables and extractive
sectors, by integrating a specific lens on modern slavery into policies, finance, and business
practices that apply to these industries;
xxii.
exercise precautionary principles and enforce the ‘do no harm principle’ while
implementing technological and engineering measures to address climate change;
xxiii.
Ensure that market mechanisms for climate finance and other approaches comply
with human rights obligations and that international treaties and agreements entered into,
particularly on investment, do not contradict their human rights and climate obligations;
xxiv.
Ensure that existing and future carbon crediting and certification schemes require
compliance with human and peoples’ rights standards;
xxv.
Criminalise mass harm to the environment through the formulation and/ or
application of ecocide law so as to strongly shift responsibility towards a safe climate; and
xxvi.
Put in place national-level institutions that represent the interests of future
generations in development planning and decision-making.
262.
National human rights institutions should take or increase measures to do the
following:
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
scrutinise national climate policies, legislations, and budgets to ensure compliance
with human rights obligations,
support effective mitigation and adaptation through monitoring
investigate violations of rights linked to sudden and extreme events of climate
change
handle, where possible, complaints of human rights significance linked to sudden
and extreme events of climate change
Increase awareness creation and education regarding issues of climate change of
human rights importance
promote climate justice between populations in climate actions
include human rights implications of climate change in their reports to state
institutions and external stakeholders
urge state institutions and businesses to honour their obligations related to climate
change
263.
Non-state actors, including non-governmental organisations (national and
international), businesses, cities and local communities, have significant potential to
play key roles in addressing the adverse consequences of climate change on human
rights. They should take measures to:
i.
respect, protect, fulfil and promote rights linked to the climate crisis as expressed
in documents including the 2023 Information Note; Guiding Principles of Business
and Human Rights and the UN Guiding Principles on Business and Human Rights
99 | P a g e
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
(UNGPs), Agenda 2063 and UNSDGs, African Union Green Recovery Action
Plan 2021-2027;
prevent climate-related human rights harms through enhanced ambition for rightsbased climate action;
measure their emission levels with the purpose of reducing their contributions to
greenhouse gas emissions;
create awareness and offer educational programs regarding the importance of
sustainable practices and create a ‘culture of sustainability’ that progressively
reduces carbon footprints;
support and or initiate climate change litigation;
bargain in good faith with workers and their unions at the enterprise and industrywide levels to ensure that mitigation adaptation efforts respect worker rights and
promote resilience for workers and their communities;
respect the right of all workers to freely form or join unions and of all people to
take part in associations and assemblies, including those related to climate change;
ensure transparency and align activities related to carbon-intensive activities with
the responsibility to respect human rights;
ensure adequate and accurate disclosure and reporting of their climate impacts in an
accessible manner;
Businesses have the responsibility to respect the right to participation and avoid
negatively affecting participation in public affairs, and should conduct appropriate
and adequate consultation on their own decisions and actions likely to have climaterelated human rights impacts;
When implementing development projects, undertake comprehensive
environmental, social and human rights impact assessments and comply with all
imposed requirements for ensuring the upholding of these standards in the
implementation of the project;
xii.
Businesses should not obstruct the work of the press, civil society, and other human
rights defenders and work with other stakeholders to empower and protect them
from threats, reprisals and harassment;
xiii. take steps to implement fair and just policies and programs to address the adverse
effects of climate change, in solidarity with those affected;
xiv. Businesses should respect the right of all persons to benefit from science and its
applications;
xv.
Businesses should support the implementation of human rights-friendly renewable
energy solutions such as solar, wind or hydroelectric power;
xvi. Businesses should support a ‘Circular Economy Model’ which focuses on reducing
waste and maximising resource efficiency by designing products and processes that
prioritise recycling, reusing and refurbishing, and that support the production of
products that can be repaired;
xvii. Improve on corporate social responsibility as a tool to address climate change and
contribute to climate finance; and
xviii. Commit to and implement greenhouse gas emissions reduction pledges in Africa.
100 | P a g e
264.
Duties of individuals in terms of Article 29 of the African Charter
265.
In line with duties set out in Article 29 of the African Charter, individuals have a role
to play in addressing the adverse consequences of climate change and human rights in
Africa. These include:
i.
Individuals should cooperate with family members on consumption and behavioural
measures and choices that may positively improve the climate;
make their physical and intellectual abilities available to effect advocacy and research
on climate change issues;
work to the best of their abilities and competence, and pay taxes imposed by law for
the purpose of protecting the climate;
preserve and strengthen positive African cultural values that may protect the climate
system;
form associations and mobilise for positive choices and choices that affect climate
changes;
individuals or groups affected by climate change can file complaints with national
and international courts and human rights bodies, alleging human rights violations
due to State or non-state environmental policies or actions.
ii.
iii.
iv.
v.
vi.
266.
African Commission
267.
The African Commission should be more proactive in promoting a safe climate and
protecting human and peoples’ rights from climate impacts. It should:
i. integrate climate change into its work through reporting guidelines, monitoring,
statements, resolutions, seminars, and advisory opinions on climate change issues;
ii. ensure that special procedures and mandate holders integrate climate change into their
activities;
iii. consistently report on the extent to which States are fulfilling their human and peoples’
rights obligations relating to climate change;
iv. integrate climate change concerns in all its activities dealing with businesses and the
extractive sector, whether it relates to mitigation strategies, adaptation measures, or both;
v. consider extending the mandate of the WGEI to take account of Sustainable Development,
Environment and Future Generations, or creating a mandate holder (an independent expert
or rapporteur) or focal point on Climate Change and Human Rights to coordinate and drive
the work of the Commission on climate change;
vi. encourage and develop an expert pool of climate change and human rights law;
vii. work with organs of the AU that have mandates or functions which interface with climate
change to mainstream human rights;
viii.
repeat its appeal to the AUC to declare an African Year on Climate Change Action;
ix. where applicable, draw climate change linkages in relevant communications brought
before it;
101 | P a g e
x. consider initiating a general comment on climate change and human rights or developing
the obligations of states in terms of Articles 21, 22 and 24 of the African Charter in relation
to climate change and human rights;
xi. prepare guidelines for states on how to follow a human rights-climate change-based
approach to development and or integrate development with climate goals in Africa;
xii. develop a human rights climate change-based approach to the implementation of Agenda
2063 and AfCFTA;
xiii.
mobilise and or initiate dialogue on the ratification of key regional and international
instruments relevant to addressing the adverse consequences of climate change on human
rights;
xiv.
initiate awareness, workshops and engagements with relevant stakeholders on the
human rights benefits of phasing out fossil fuels, debt cancellation, and climate reparations;
xv. initiate a protocol to the African Charter on the right to sustainable development and a safe
climate, with a focus a) access rights (open information, public participation and access to
justice), b) substantive elements of socially, environmentally, culturally and economically
sustainable development for current and future generations of Africans, c) climate and
environment human rights defenders and d) cooperation among African countries
including in advancing international responsibility on the basis of CBDR-RC; and
xvi.
map out its need for capacity development, knowledge management, technical
assistance, and advocacy needs and opportunities for operationalising the
recommendations in this study.
102 | P a g e