There has been no litigation against the government in Namibia for ineffective climate policy or law. Such a case can, however, be filed under the following grounds;
- Constitutional duties: Article 95(l) of the Constitution places a duty on the Namibian government to develop appropriate laws to protect the environment. Lack of necessary legislative measures to address climate change can be challenged under this provision.
- International obligations: Article 144 of the Constitution incorporates international law as law of the land and courts can directly apply international law as long as it conforms with the Constitution. Having ratified the Paris Agreement and submitted its NDC with 49 proposed adaptation actions, the government has a duty to place sufficient measures to achieve its NDC and obligations under the Paris Agreement.
- Human Rights: Right to life and right to a healthy environment. Namibia has ratified the African Charter on Human and Peoples’ Rights, which is binding and can directly be applied by courts (Kauesa v. Minister of Home Affairs). Art. 24 of the Charter provides under that all peoples shall have the rights to a general satisfactory environment favourable to their development. Secondly, Art. 6 of the Namibian Constitution guarantees the protection of right to life, which implicitly includes the right to a clean and healthy environment.
Standing: The Constitution grants standing to “persons aggrieved” by alleged violation of fundamental rights or freedoms. The Constitution does not define “aggrieved persons” and there is conflicting jurisprudence on whether it refers to the common law “direct and substantial interest” requirement or whether it is broad (see Maletzky and others v Attorney General and others holding that the constitution has not extended common law requirements of standing; Petroneft International Glencor Energy UK Ltd and Another v Minister of Mines and Energy and Uffindell t/a Aloe Hunting Safaris v Government of Namibia 2009(2) NR 670(HC) holding that a broad standing should be adopted in constitutional challenges).
Possible reasons for the lack of climate policy litigation could be;
- the absence of a legislative instrument focusing on climate change that would be the subject of such challenge. While there exists a National Policy on Climate Change, it merely provides the societal goal in making and applying laws but not enforceable in court (Art. 95(1) Constitution).
- Regarding mitigation, Namibia’s GHG emissions are insignificant (In fact, Namibia is a net sink for CO2 as indicated by the two GHG inventories done so far), which leads to no demand for stronger mitigation action.
For more country specific context and relevant national climate change law see: https://climate-laws.org/geographies/namibia
This country report has been produced by Lydia Omuko-Jung, C2LI Legal Analyst. The summary is based on Oliver C. Ruppel, “Country Report Namibia: Legal Climate Change Action and Constitutional Protection” in F. Sindico and M. Moise Mbengue, Comparative Climate Change Litigation: Beyond the Usual Suspects, Springer, 2021, in addition to further research conducted by Lydia Omuko-Jung, C2LI Legal Analyst.