CLIMATE CHANGE AND THE JUDICIARY IN AFRICA

CLIMATE CHANGE AND ITS BURDEN OF LITIGATION ON THE JUDICIARY IN AFRICA

In the last two decades, we have witnessed how the Judiciary in Africa is being placed on a strategic pedestal more than ever as climate change has come to stay and the need for legal adaptation to litigation emanating from the effects of climate change. The Judiciary through Courts of first instances are now faced with how to treat cases originating from the impact of climate change. It is time for the stakeholders in the administration of justice to be educated to take positions for the duties ahead, for they appear enormous.

There is a growing realization that courts are important in addressing climate change alongside legislatures and international bodies. This is because they adjudicate in climate change-induced litigation.

Climate change-induced litigation is defined as litigation originating from a cause of action in which climate change is alleged to be a causal factor in a criminal, civil wrong, or tort (such as carelessness or nuisance) resulting in an asserted responsibility. Climate change lawsuits may arise from the law of environmental nuisance, carelessness, infringement of human rights, or failure to meet contractual obligations due to flood, heat stress, drought, or other repercussions. It is interesting to observe that climate change has brought elements of crime in both positive and harmful ways.

The Court has emerged as a crucial battleground in efforts to regulate climate change in all countries in the World. Nigeria is not an exception, especially with the passing into law of the Climate Change Commission Act, which will hasten development in this area of the Law. Over the past several years, Courts and Tribunals worldwide have entertained claims regarding greenhouse gas emissions and impacts. These cases rely on diverse legal theories, but all focus is on the government regulation of climate change or the actions of major corporate emitters.

Up until now, climate change-related litigation in Nigeria and around the World has only dealt with liability for emissions charges in contracts, claims of breach of relevant laws leading to various forms of damages, defending prosecutions, and responding to environmental agencies' enforcement notices (pollution suppression and clean up notices). However, there is a new dimension that is still being closely monitored, and it is real. It is the arrest, prosecution, and even conviction of individuals under criminal law on the grounds that they have committed criminal breach of trust, misappropriation of funds, and similar offences after failing to adhere to the terms of informal contracts because of climate change.

Judges, particularly, at the lower Courts are faced with the challenges of whether to convict suspects brought before them for alleged criminal offences or to do away with the cases based on them emanating from the effects of climate change, which may be flooding, heat stress, or drought. An example of one of these cases is the story of Aishat, a female farmer in one of the States in Nigeria who was paid a huge sum of money for raw materials but could not deliver at the agreed time because the supposed plants which would have yielded into raw materials were washed off the farms at infancy stage by flooding. The truth was that Aishat had used the money for unaccountable ventures and when asked to refund the same, she could not and that led to her arrest and detention for over two weeks. She was later charged to a Court for an advance fee fraud indictment and there is a likelihood that the plea of the non-performance of the oral contract not being a deliberate one may meet stiff opposition because there is no defence as such under our laws. I wonder how Prof. (Justice) Alaba Omolaye-Ajileye. (PhD, FICMC) would have treated a case of this nature when he was a Judge with the Kogi State Judiciary. This is indeed a wake-up call for International Federation of Women Lawyers (FIDA Nigeria) and other legal stakeholders to look out for the violation of the rights of women in climate change-prone areas in Africa. There is also an urgent call to the National Judicial Institute (NJI) - Nigeria , Nigerian Bar Association HQ , and Nigerian Institute of Advanced Legal Studies to start training lawyers in all spheres of legal practice to easily decipher cases related to climate change and treat them with the required audacity in line with the tenets of social justice.

As a stakeholder in the administration of criminal justice, are you not curious to know more and be more vigilant in your dealings with cases before the Courts? Although dubious people may start adopting climate change as a tool for fraud and other vices, I think that we look into this matter extensively because the liberties, human rights and livelihoods of people are being jeopardized. About 69% of inmates in correctional centres in Nigeria are indeed awaiting trial while only 39% are convicted. There is a need for awareness that some of the people awaiting trial are there just because of the effects of climate change and that is unfair. Climate Change topics should be interesting to lawyers in this age because it has come to stay and it is time we start taking courses on them. All thanks to 澳大利亚国立大学 , through the Institute of Climate, Energy and Disaster Solutions, for helping professionals all over the World to gain insights and education into climate change.

How do we address this newly discovered intersectionality of law and climate change in the form of SDG16 and SDG13 respectively? This is a call out to all stakeholders in the justice system to take a look and adjust. The conventional law practice is good and justifiable, but it is time for a shift from the conventional to trendy and workable adjustments in line with the rules of justice, equity, good conscience, and careful consideration of the imminent is suggested in dealing with cases in this new era. Climate Justice is real and it is achievable.

As written by Unekwu Odiba